Divisional Manager, Oriental Insurance Co. Ltd. vs Smt. Chinta Devi and Others

Mungeshwar Sahoo, J.—The Insurance Company has filed this Misc. Appeal against the order dated 22nd February, 2008 passed by the Additional District Judge - cum - Motor Vehicle Accident Claim Tribunal, Kishanganj, in Claim Case No. 16/2006 whereby the Appellant had been directed to pay Rs. 50,000/- on no fault basis u/s 140 of the Motor Vehicles Act to the claimants.

It appears that the claimants-Respondents No. 1 and 2, i.e., the parents of the deceased Baldeo Lal @ Munna, filed the aforesaid claim alleging that their son aged about 18 years was engaged as agricultural labourer on a tractor by the owner Respondent No. 3. On 1st April, 2005 the Cooli was sitting on the trailer of the tractor and in the way the trolley of the tractor turtled as a result of which the claimants'' son died. According to the claimants their son died because of rash and negligent driving of the driver of the tractor.

The Insurance Company appeared and filed contesting written statement alleging that at the material time of accident the tractor was being used for carrying bricks which was against the terms and conditions of the policy of Kissan Package Policy and, therefore, the Insurance Company is not liable to pay any compensation.

Thereafter an application u/s 140 of the M.V. Act was filed. The Appellant objected on the ground that the risk of the deceased was not covered under the said policy taken by the insured.

By the impugned order the learned Court below without deciding the issue raised by the Appellant held that because of the fact that the vehicle in question was insured with the Appellant Insurance Company is liable to pay in terms of compensation u/s 140 of the M.V. Act and directed the Appellant to pay the same.

The learned Counsel for the Appellant submitted that the Insurance Company Appellant has no liability in respect of persons travelling in the trolley. This point was raised by the Appellant before the Court below but instead of deciding that issue the learned Court below directed the Appellant to pay the interim compensation. The learned Counsel further submitted that this question was purely question of law. And no procedure as required to decide the application u/s 166 of the M.V. Act was required to be followed. On these grounds the learned Counsel submitted that the impugned order is liable to be set aside.

On the other hand, the learned Counsel appearing on behalf of the claimants and owner Respondents submitted that insurance was done for the tractor and trolley and, therefore, the Insurance Company is liable to pay the interim compensation because the policy being comprehensive covered the risk of third party. The learned Counsel relied upon a decision reported in Safique and Ors. v. Manas Kumar Mukherjee and Ors. 2007 (2) BBCJ 8: 2008 (2) T.A.C. 741.

From perusal of the aforesaid decision cited by the learned Counsel for the Respondents it appears that in that case extra premium was found to be paid for loading and unloading agricultural produce or equipments etc.

In a decision reported in Smt. Yallwwa and Others Vs. National Insurance Co. Ltd. and Another, the Hon''ble Supreme Court has held at paragraphs 11,16 and 17 as follows:

11.One of the defences available to the insurer is breach of conditions specified in the policy. When such a defence is raised, the Tribunal is required to go into the said question. Section 140 of the Act does not contemplate that an Insurance Company shall also be liable to deposit the amount while it has no fault (sic obligation) whatsoever in terms of Sub-section (2) of Section 147 of the Act.

The question which is required to be considered is what would be the meaning of the term "award" when such a contention is raised. Although in a given situation having regard to the liability of the owner of the vehicle, a Claims Tribnal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the liability of the Insurance Company, in our opinion, stands on a different footing. When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner although in terms of the insurance policy or under the Act, it would not be liable therefore."

In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified u/s 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the Insurance Company to plead and prove that it is not liable at all.

In view of the above settled principles of law even if it is an application u/s 140 of the M.V. Act unless it is decided by the Tribunal as to whether the Insurance Company is at all liable to pay any compensation no order could have been passed because according to the Appellant this point was raised but not decided.

In another decision reported in United India Insurance Company Limited Vs. Serjerao and Others, the Hon''ble Supreme Court has held that regarding labourers travelling in trolleys the Insurance Company has no liability to pay compensation. In that case also it appears that the labourer who ought was travelling on trolley of the tractor and order u/s 140 of the M.V. Act was passed directing the Insurance Company to pay the interim compensation the Hon''ble Supreme Court set aside the order.

In another decision reported in National Insurance Co. Ltd. Vs. V. Chinnamma and Others, the Hon''ble Supreme Court held that a tractor is not even a goods carriage as defined in Section 2(14). The Tractor has been defined in Section 2(44). At paragraph 16, the Hon''ble Supreme Court has held that the trolley attached to the tractor, thus, necessarily is required to be used for agricultural purposes. In the present case at our hand according to Annexure-4, i.e., the statement of mother of the deceased, the deceased was used as labourer for loading and unloading bricks. In similarly situated case the Hon''ble Supreme Court in a decision reported in New India Assurance Co. Ltd. Vs. Vedwati and Others, has held that inevitable conclusion, therefore, is that provision of the Act do not enjoy any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurers would have no liability. It appears that in this case also the deceased was travelling on a tractor.

In view of the above facts and circumstances of the case the Tribunal is required to render a decision upon the issue raised by the Appellant as to whether the Insurance Company was liable to pay the compensation.

From perusal of the impugned order I find all these questions that whether the tractor was used for commercial purposes or for agricultural purposes and whether there was extra-premium for labourer and if so for how many has not been decided. Therefore, the clear facts are not before this Court. I, therefore, set aside the impugned order and the matter is remanded to the Court below for a fresh decision on the point raised by the Insurance Company about its liability.

In the result, this miscellaneous appeal is allowed. The impugned order is set aside and the matter is remanded to the Court below for a fresh order according to law after deciding the issue raised by the Appellant in the light of the Hon''ble Supreme decisions referred to above.

The statutory amount deposited by the Appellant may be returned to the Appellant.