Owners of the tractor and trailer held liable to pay compensation.

The appeal is filed by the Insurance Company of the trailer and the owner of the trailer. The accident happened in this manner:

2. On 1.10.1994 at 10.30 a.m., one Duraian who is the son of the respondents 1 and 2 was travelling in the trailer bearing Regn. No.TNW 9445 for loading sugarcane. The trailer was attached to the tractor. The trailer belonged to the deceased 1st appellant whose legal representatives have now been impleaded and was insured by the 2nd appellant. The tractor belonged to the 4th respondent and was driven by the 3rd respondent and was insured by the 5th respondent.

The manner in which the accident took place is not in dispute and Ex.P-1 is the F.I.R. It is seen therefrom that when the tractor-trailer was going round the bend in Soogalur road, the deceased Duraiyan was attempting to place a stone on the left side rear wheel of the tractor. At that time, the driver, not noticing that Duraian was behind the wheels, started the tractor rashly and negligently and therefore, the trailers back wheel went over the deceased Duraiyan and he died.

3. The person who gave the F.I.R. Murugesan has also given evidence as P.W.2. He is an eye witness. The respondents 1 and 2 claimed Rs.2,52,500 and they were awarded Rs.96,000 with interest. The tribunal found that since the death of Duraiyan occurred only because of the trailer going over him, the owner of the trailer and the insurer are alone liable to pay the compensation.

4. Mr.N.Rosi Naidu, appearing for the appellants would submit that the Tribunal totally erred in fixing the liability to pay compensation solely on the appellants when it is evident that the trailer cannot move on its own and if the accident happened, it can only be on account of the negligence of the driver of the tractor and in fact, he referred to the following sentence in the judgment thus:

When the accident had occurred on account of the rashness and negligence of the tractor driver, the counsel wondered how it was legal to fix the liability on the owner of the trailer and the insurer. He referred to the following judgments: Karnataka High Court Oriental Insurance Co. Ltd. v. N.Chandrashekara Oriental Insurance Co. Ltd. v. N.Chandrashekara Oriental Insurance Co. Ltd. v. N.Chandrashekara 1997 A.C.J. 512 and Oriental Insurance Co. Ltd. v. Shivalingamma 1999 A.C.J. 1484 again of Karnataka High Court.

5. The counsel Ms.Mala appearing for 5th respondent would however submit that the Tribunal had not at all erred in making the appellants liable to pay compensation. The tractor had not caused the accident so, neither the owner of the tractor nor the insurer of the tractor could be made liable. She would also submit that if one were to accept the argument of the learned counsel for the appellants, then, there was no justification for the trailer to be at all insured because in every case, in which the trailer causes the accident, it would be argued that the trailer cannot move on its own and therefore, the insurer of the tractor alone should be fixed with the liability to pay compensation. She would submit that the very fact that the trailer is insured would show that for accidents caused by the trailer, compensation should be paid by the owner of the trailer.

6. Mr.M.M.Sundaresh, learned counsel appearing for respondents 1 and 2, the claimants would point out to an error in computing the quantum. He would submit that notwithstanding the fact the respondents had not filed cross-objection, it is open to this Court to exercise its powers underO.41, Rule 33, C.P.C. which gives the appellate Court the power to pass any order which ought to have been passed or made. According to the learned counsel, the Tribunal had fixed the income of the deceased at Rs.900 and the contribution to his parents at Rs.600. The annual loss of contribution would therefore be Rs.7,200. Thereafter, it had multiplied thus by 20 on the ground that both the respondents 1 and 2 could have lived for 20 years and arrived at