1. These appeals arise out of the judgment and award passed in MVC No.694/2018 dated 22nd April 2021 by the IV Addl. District and Sessions Judge and Member, MACT- XIII, Vijayapura (in short `the Tribunal’), wherein the Tribunal awarded an amount of Rs.16,54,000/- to the claimants for the death of deceased-Dharmappa and held respondent no.1- i.e. owner of the tractor liable to pay the compensation. Thus, the claimants/appellants have approached this Court for enhancement of compensation in MFA No.201179/2021 whereas, the appellant in MFA No.200475/2022 who is the owner of the Tractor, has challenged the fastening of liability on him by the Tribunal.

2. In MFA No.201179/2021, the appellants are the mother, wife and children of deceased – Dharmappa who died as a result of motor accident that occurred on 29.04.2018 at 2.50 p.m. in the land of one Basanagouda Hosamani at Kuralgera Village when he was working in the land. It is the case of claimants that, the driver of Tractor No.KA-32/TA-7810 suddenly moved the vehicle in a rash and negligent manner and ran over the deceased thereby, caused accident, due to which, the deceased sustained grievous injuries and died of the same. On the basis of complaint, a crime came to be registered in 74/2018 in Yedrami Police Station.

3. The case of the claimants before the Tribunal is that, they are depending on the income of the deceased and contended that the accident took place due to rash and negligent driving by the driver of the offending tractor. The age of the deceased at the time of accident was, 35 years. He was working as a Coolie/Labourer and his income was Rs.15,000/- per month. Thus, sought for compensation of Rs.50,00,000/-.

4. After service of notice, respondent nos. 1 to 3 appeared through their Advocates and filed their separate written statement disputing the age, avocation and their liability. Further, they admitted that the Insurance Policy was valid from 25.1.2018 to 24.1.2019 and further contended that there was no intimation regarding transfer of TT Unit in the name of respondent no.1. The tractor was being used to carry paddy from the land of one Basanagouda Hosamani. The owner has breached the Policy conditions. The deceased was traveling on the mudguard of the tractor sitting by the side of the driver. The risk of the deceased was not covered. Thus, prayed for rejection of the claim petition.

5. The Tribunal framed relevant issues and on hearing the arguments and on evaluation of the evidence, proceeded to assess the income of the deceased, considering that, as no proof of income is produced by the claimants, the Tribunal has taken notional income at Rs.11,000/- and by its award, awarded a total compensation of Rs.16,54,000/- together with interest at 6% p.a. from the date of petition till its realization and directed the owner of the Tractor to pay the compensation to the claimants holding that the Insurance policy covers only the risk of owner and driver of the tractor and not the unauthorized passenger i.e. deceased at the time of accident.

6. Heard the learned counsel for the appellants/claimants and respondent/Insurance Company in both these matters.

7. Having heard the arguments of learned counsel for the appellants/claimants as well as learned counsel for respondent-Insurance Company, it is relevant to consider the avocation and income of the deceased at the time of his untimely death and other aspects keeping in mind the judgments of the Apex Court which hold the field.

8. PW.1 being the claimant No.2 has reiterated the contents of the petition in her evidence on oath. It is her evidence that at 2.50 p.m. on 29.04.2018 in the land of Basanagouda Hosamani in Kuralgera Village, her husband was working. At that time a tractor bearing Reg.No. KA-32/TA-7810 came near him driven by its driver and the said driver suddenly swerved in the tractor in a rash and negligent manner and dashed to the deceased. The big wheel of the tractor ran over the deceased. Because of this accident, her husband sustained serious injuries and died. It is her evidence that the after conducting the post mortem, the claimants have spent more than Rs.40,000/- towards funeral expenses.

9. She further states that her husband was a Coolie and was earning Rs.15,000/- per month. Because of untimely death of deceased, the claimants who were dependents on the deceased are deprived of their livelihood and they are suffering mentally and financially. It is stated that respondent No.1 being the owner and the respondent No.2 the insurer of the tractor are liable to pay the compensation.

10. The PW.1 was cross-examined by the third respondent only. It is stated by PW.1 that her husband was sitting on the mudguard of the big wheel of the said tractor and fell down and died. The said tractor ran over on his chest. She further states that if there was accident from front portion, the front wheel would have ran over him. She states that the front wheel did not ran over him. She denied other suggestions.

11. She further states that her husband was 10 years elder than her. She denied the suggestion that her husband was not earning Rs.15,000/- per month.

12. Ex.P1 is produced by the claimants being the FIR wherein it is stated in the FIR that because of sudden swerving of the tractor by its driver in a rash and negligent manner, the said tractor ran over on the person of the deceased. It is stated that the deceased fell down and died. Even in the complaint Ex.P2 it is stated that because of dashing of a tractor to the deceased Dharmappa, he fell down and a big tyre rolled on the chest. The other documents like copy of the charge sheet also shows that because of rash and negligent driving of the tractor by the driver, the said accident has taken place. It is stated in the charge sheet that the complainant and CW.4 stated in the charge sheet by name Kalyanappa S/o Bhimappa were the eye witnesses. The said Kalyanappa is not examined by the claimants. PW1 being the eye witness as per the contents of the charge sheet clearly admitted in the cross- examination that her husband fell down from the mudguard and came under big wheel of the tractor and died. From this evidence, it is very much clear that the deceased Dharmappa must have sat on the mudguard and because of swerving of the said tractor by its driver and because of the jerk, he must have fallen down from the mudguard and must have come under the big wheel of the tractor. Because of this he must have died. In view of the aforesaid evidence, the possibility of sitting of deceased on the mudguard and because of jerk so created on account of rash and negligent driving, the said accident must have taken place, cannot be ruled out.

13. The Tribunal, while assessing the income has considered both oral and documentary evidence. Though claimants have contended that the deceased was earning Rs.15,000/- p.m., the Tribunal, having regard to the KSLSA chart which stipulates an income of Rs.11,750/- did not accept the same, but, since no proof of income is produced by the claimants, the Tribunal has taken income of the deceased at Rs.11,000/- which is on the lower side. The income is required to be assessed at Rs.11,750/- only. Having regard to the age of the deceased, applied multiplier `16’ keeping in view Sarla Verma’s case. So, the Tribunal assessed the loss of dependency at Rs.15,84,000/- (Rs.11,000 x 12 x 16 x ¾).

14. Now the deceased’s income is considered at Rs.11,750/- p.m. As per Pranay Sethi’s case, 40% is to be added towards future prospects, but, the Tribunal has failed to consider the same. If 40% i.e. 4,700/- of Rs.11,750/- is added, it comes to Rs.16,450/-. Out of this, 1/4th has to be deducted towards his personal expenses i.e. Rs.4,113/- as he had five dependents. It comes to Rs.12,337/-. Having regard to the age of the deceased as 35 years, `16’ multiplier is required to be applied. Thus, it will come to Rs.12337 x 12 x 16 = Rs. 23,68,704/-. Thus, the loss of dependency would be Rs. 23,68,704/-. Since the Tribunal has awarded an amount of Rs.40,000/- only to the first claimant being the wife of deceased, it is just and proper to award loss of consortium to the mother and 2 children of deceased also at the rate of Rs.40,000/- each. Thus, totally, the claimants would be entitled to Rs.1,60,000/- with 10% hike. It comes to Rs.1,76,000/-. The amount awarded by the Tribunal towards loss of estate and funeral expenses are just and proper and no interference is called for. Thus, the claimants are entitled to the following compensation:

Regarding Liability:

15. So far as liability to pay the compensation is concerned, though it is argued by the counsel for the claimants as well as the owner of the tractor that as the Insurance Policy in respect of the offending tractor was valid and in force as on the date of the accident, therefore, both owner and insurer are liable to pay the compensation. It is submitted that as policy is admitted, the Insurance Company has to indemnify, whereas, the learned counsel for the Insurance Company submits that as it has come in the evidence of PW1 an eye witness of the accident, deceased was sitting on the mudguard. The tractor permits the one person to travel that is only the driver. There is no permit to carry any passenger. Even the policy also does not cover the passenger as a coolie. Therefore, it is submitted that in view of the violation of the policy conditions by the owner, the Insurance Company is rightly absolved from payment of compensation. The Tribunal was right in giving such a finding and absolving the Insurance Company from indemnifying. In support of her submission, the learned counsel for the Insurance Company relied upon a Full Bench judgment of this Court reported in AIR 2021 KAR 102 in the case of Gadhilingappa @ Gadhilinga S/o Ulluru Mallappa @ Yellappa vs K. Guleppa S/o K.Lingappa and others. In the aforesaid judgment, the Full Bench of this Court has held that “a person traveling on a mudguard of a tractor cannot be construed as an authorized passenger or an unauthorized passenger”. In para. 23 of the said judgment, the Full Bench it has been held as under:

“23. The Apex Court has reiterated that a tractor could lawfully accommodate only one person, namely, the driver. The Apex Court categorically held that the appellant in the said case had traveled in the tractor as a passenger even though the tractor could accommodate only one person namely the driver. It was categorically held that the insurer was not liable to indemnify the owner of the tractor for the liability of a passenger travelling on the tractor. Hence, in view of the dictum of the Apex Court referred above, the liability of a person sitting on the mud-guard of a tractor is not required to be covered by statutory insurance policy, as contemplated by sub-Section (1) of Section 147 of the M.V.Act.”

16. In this case also the deceased was found sitting on the mudguard of the tractor as spoken to by PW.1 an eye witness. Therefore, as per the policy issued by the Insurance Company, his risk was not covered by the insurer. When it is a case of the claimants that deceased was sitting on the mudguard of the tractor and driver was unable to control the tractor and swerved, the deceased fell down resulting in death because of sustaining grievous injuries. Thus, as held by the Full Bench of this Court, the insurer was not liable to indemnify the owner of the tractor was liable for the passengers traveling on the mudguard. As per the insurance policy, the insurer shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability. But, the policy purports to cover even in proceedings under the M.V.Act without such liability having been first determined or adjudged under the Workmen’s Compensation Act. It is not the case of the claimants that he was the coolie on the said tractor on that ill fated day. That being the position, the owner of the said tractor has not complied the bare provisions of Sec.147 of the M.V.Act.

17. Evidently, the said tractor was not used for any agricultural purpose and there is no evidence to that effect brought on record by the owner or the claimants. Even the driver of the said tractor was not examined by the owner to prove that the deceased was not sitting on the mudguard. It is fatal to the case of the owner of the tractor. Even he also has not entered the witness box to substantiate his plea which is fatal to his defence. Therefore, it can very well be stated that, as rightly held by the Tribunal, in view of the violation of the policy conditions by the owner of the tractor, the Insurance Company is not liable to indemnify the compensation, whereas, respondent No.1 is liable to make good the compensation to the claimants.

18. In view of the above, the appeal filed by the claimants deserves to be allowed and the appeal filed by the owner of the offending tractor is liable to be dismissed holding that it is respondent no.1 owner of the tractor, is liable to pay the compensation.

19. Accordingly, the aforesaid points are answered.

20. Resultantly, we pass the following:

ORDER

i) MFA No.201179/2021 filed by the claimants is allowed in-part. The claimants are held entitled for compensation of Rs.25,74,704/- as against Rs.16,64,000/-, thereby, they are entitled for enhanced compensation of Rs.9,10,704/- rounded off to Rs.9,10,800/- together with interest at the rate of 6% p.a. from the date of petition till realization.

ii) MFA NMo.200475/2022 is dismissed holding that Respondent No.1 owner of the tractor to deposit the compensation within four weeks from the date of receipt of certified copy.

iii) So far apportionment of the compensation and order regarding deposit, shall be as per the orders passed by the Tribunal and it remains unaltered.

iv) Send back the Trial Court records forthwith along with copy of this judgment.