Chhitarlal and Others vs Ramlal and Others

J.K. Ranka, J.—The instant civil misc. appeal has been filed by the appellants-non-claimants Nos. 1, 2 & 4 under Section 173 of the Motor Vehicles Act for quashing and setting aside the impugned order dated 7.7.2008 passed by the MACT, Aklera District, Jhalawar, in claim case No. 95/2006, whereby the claim petition filed by the claimant has been partly allowed granting compensation of Rs. 63712/- in favour of the claimant.

The brief facts as emerging on the face of record are that three claim petitions were filed before the Tribunal in respect of same incident, which were heard together and decided by the Tribunal vide its impugned award. It was averred in the claim petitions that the claimants went to Nalkhedi in connection with the marriage, when they were returning in Trolley bearing No. R.J. 17/E.A.0091 of Mahendra Tractor DI having no number plate, with Chassis No. J.Y.T.284 on 19.4.2006. It was alleged that Tractor driver Chhitarlal (non-petitioner No. 1) was driving the Tractor in a rash and negligent manner and drove the Tractor Trolley from the side of Truck (Dumper), which was standing at the corner of the road due to which the passengers who were sitting left side of the trolley received injuries on their legs. It was further averred that the Tractor having no number 275 D.I. Chesis & Engine No. J.Y.T.284 was insured with non-petitioner No. 3 and its registered owner was non-petitioner No. 2 Ratanlal. It was further averred that Tractor-Trolley bearing No. R.J. 17/EA.0091 was insured with non-petitioner No. 5 and its owner was non-petitioner No. 4 Srilal. The claimant in the present case Ramlal demanded a compensation of Rs. 19,00,000/- on account of injuries sustained by him in the said accident from all the non-petitioners jointly and severally.

The non-petitioners Nos. 1, 2 & 4 filed their reply to the claim petition denying all the allegations made in the claim petition and stated that the accident was not caused by the Tractor Engine bearing No. J.Y.T.284 along with Trolley bearing No. R.J.17/E.A.0091. On behalf of non-petitioner No. 3 United India Insurance Co. Ltd. and non-petitioner No. 5 National Insurance Co. Ltd. reply to the claim petition was filed stating therein the claimants have filed false claims and there is no dispute that the vehicles were insured with the Insurance Companies, but it has been specifically pleaded that the vehicles were insured for agricultural purposes. It was stated that it was admitted that there were 10-15, 20-25 & 30-40 sitting in the vehicles in question excluding tractor driver and no premium in respect of covering risk was paid in so far as the passengers are concerned and, therefore, the Insurance Companies are not liable to pay the compensation to the claimants. It was stated that accident was not caused by vehicle Trolley bearing No. R.J.17/E.A.0091. It was also stated that the trolley was attached with the Tractor but it was liable to be treated separately.

After hearing the arguments advanced by the parties, the learned Tribunal framed as many as 5 issues including the issue of relief. The claimants produced A.D. 1 Devilal, A.D. 2 Ramlal and A.D. 3 Mangilal as witnesses in support of their claims. The non-petitioners got recorded statements of N.A.W. Ravi Malik, N.A.W. 2 Prabhulal, Chhitarlal N.A.W. 3 (non-petitioner No. 1) and N.A.W. 4 Ratanlal (non-petitioner No. 2). Documents were got exhibited i.e. FIR (Ex. 1), Injury Reports (Ex. 2, 3 & 4), Challan (Ex. 5), Site inspection report of the incident (Ex. 6), seizure memo of tractor & trolley (Ex. 7) and notice under Section 133 of the M.V. Act (Ex. 8). The Tribunal after considering the submissions of the counsel and perusing the material available on record passed the impugned award granting compensation of Rs. 63712/- in favour of the claimant in the present case. Hence this appeal.

Shri Dhurv Atrey, learned counsel for the appellants submitted that while the Tractor was insured with one company, the trolley was insured by another company and there are two different owners of Tractor as well as of Trolley. He further contended that the licence was found to be valid and both the vehicles were admittedly insured. He contended that both the vehicles including trolley did not meet with an accident and only to implicate the present owner/driver false claim was lodged by Ramlal, who in fact had met with some accident and tried to implicate the present appellants. Alternatively he further contended that even if the same is stated to be correct then there was no liability of the appellants as both the vehicles were admittedly insured and it was on account of the Dumper, which was wrongly moving and it was mistake of Ramlal, who kept his legs outside and when Dumper was coming on the wrong way his legs got injured as there was very little gap. He further contended that in so far as appellants are concerned when the vehicles are admittedly insured then Insurance Companies are liable and not the appellants and the Tribunal has wrongly casted onus on the appellants. He relied on the judgment of the Hon''ble Apex Court delivered in the case of Nagashetty Vs. United India Insurance Co. Ltd. and Others, and submitted that the Insurance Companies cannot be absolved on the ground that licence to drive the Tractor becomes ineffective if Trolley is attached to it and further that the judgment cited by him is squarely applicable on the facts of the present case.

Per contra, Shri B.P. Sharma, learned counsel for the respondents submitted that the Tribunal after a detailed analysis has come to a correct conclusion in awarding the claim. He further contended that the Tractor and Trolley were insured for agricultural purposes and not for carrying the passengers. Admittedly, 10-15, 20-25 and 30-40 people were sitting in the Tractor and Trolley along with the injured and they had gone to attend the marriage and while returning met with the accident. He further contended that the Dumper was standing on the road side and the Trolley with Tractor was not being driven cautiously by the driver of the Tractor. He further contended that the Insurance Company has not charged any premium for carrying the passengers and, therefore, there was no liability of the Insurance Company as has rightly been held by the Tribunal. He contended that the appeal deserves to be dismissed. He relied upon the judgments of the Hon''ble Apex Court in the cases of Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, and National Insurance Co. Ltd. Vs. Baljit Kaur and Others, .

I have considered the arguments advanced by the learned counsel for the parties and perused the material available on record including the impugned order.

In my view, the Tribunal after considering all the facts and circumstances has correctly passed the award by elaborate observations in favour of the injured Ramlal and against the present appellants. It is an admitted fact that the Tractor and Trolley were insured only for agricultural purposes and even the Trolley had residue of coriander leaves in it and there was no occasion for any one to sit in the Tractor/Trolley. Admittedly, no premium was charged by the Insurance Company on account of travelling by the passengers and since they had not charged any premium, therefore, in my view, the issue has correctly been decided by the Tribunal in favour of Insurance Companies but appellants to bear the amount..

I have also considered the judgment cited by the learned Counsel for the appellants in the case of Nagashetty v. United India Insurance Co. Ltd.(supra) and in my view the judgment is distinguishable for the reason that the tractor and trolley were meant for the purpose of carrying goods and no extra premium was paid. In the present case the Tractor and Trolley were meant for the purpose of carrying agricultural produce and not for carrying the passengers and in fact agricultural produce/goods could alone be carried in the Tractor & Trolley rather than passengers, who, as observed hereinabove were large in number and were returning after attending the marriage. The fault was of the appellants in permitting to sit so many people. Even otherwise the fault was of the appellant(Driver) as admittedly the Dumper was in standstill position and the appellant (Driver) ought to have been vigilant and to have seen that Dumper was standing there and accident took place when tractor was passing closely through the side of the Dumper. The Driver ought to have driven the vehicle leaving adequate gap in between the tractor-trolley viz. a viz. Dumper.

The Hon''ble Apex Court in the judgment rendered in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, had an occasion to consider the issue where trolley was attached to tractor, which was carrying earth while the claimant in that case being a labourer was sitting on the earth loaded on the trolley and admittedly the tractor was being insured for the purpose of agriculture only and he being merely a passenger. The claim was not found maintainable. The relevant portion of the said judgment in Para 10 is reproduced as under:--

"10. Furthermore, respondent was not the owner of the tractor. He was also not the driver thereof. He was merely a passenger travelling on the trolley attached to the tractor. His claim petition, therefore, could not have been allowed in view of the decision of this Court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, wherein the earlier decision of this Court in New India Assurance Company Vs. Shri Satpal Singh and Others, was overruled. In Asha Rani (supra) it was, inter alia, held:

Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmens Compensation Act. It does not speak of any passenger in a "goods carriage".

In view of the changes in the relevant provisions in the 1988 Act vis-�-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefore.

Furthermore, Sub-clause (i) of Clause (b) of Sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas Sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."

Accordingly, in the light of the said judgment of the Hon''ble Apex Court, I find that the finding arrived at by the Tribunal is correct as an appellate court, this Court is required to examine legality and illegality in the award passed by the Tribunal and in my view, the Tribunal has committed no illegality, infirmity or perversity in passing the impugned award.

Accordingly, for the reasons stated hereinabove, the appeal of the appellants stands dismissed.