Karam Chand and Another vs Budhani Bai and Others

N.K. Agarwal, J.—This is owner''s appeal against the award dated 23-4-2008 passed in Claim Case No. 61/2006 by the 1st Additional Motor Accident Claims Tribunal, Raigarh. Brief facts of the case are as under:-

As per claimants, on 26-3-2006 deceased Survan Sai along with several other persons including Nand Kumar, Adan, Govind etc. had gone to village Chandrapur Tahsil Dabhra for Chandrahasini Temple Darshan by sitting in the tractor No. M.P. 26E 5139. On their return, the said tractor turned turtle due to rash and negligent driving of appellant No. 2 Sukharu Ram and Survan Sai succumbed to the injuries sustained in the said accident.

Respondents No. 1 to 6, the unfortunate wife, minor children and mother filed application u/s 166 of the Motor Vehicles Act, 1988 (briefly, ''the Act'') against the appellants and respondent No. 2 claiming Rs. 12 lacs as compensation for death of deceased in the said accident.

The appellants filed written statement in which the said accident was not denied but it was pleaded that the said accident occurred due to negligence of the deceased himself. The respondent no. 7, insurance company also denied its liability to pay compensation to the claimants by filing their written statement and by stating that the said tractor was being plied in breach of the policy conditions. Respondents No. 1 to 6/ claimants examined 4 witnesses. The appellants did not examine any person as their witness. Respondent no. 7 examined Branch Manager as its witness.

Learned Tribunal on a close scrutiny of the evidence led, material placed submissions made, held appellant no. 2 responsible for the said accident; assessed compensation payable to the claimants as Rs. 3,12,500/- and held appellants responsible for its payment exonerating the insurance company from its liability to pay compensation to the claimant on the ground that under the policy of insurance, the risk of occupant of tractor and trolley was not covered.

Shri Santosh Kumar Tiwari, learned counsel for the appellant would submit that the learned Tribunal has erred in not holding the deceased as "third party", covered under the policy of insurance and thus erred in exonerating the insurance company from its liability to indemnify the appellants. He would further contend that in view of Rule 97(7) of C.G. Motor Vehicles Rules, 1994 (briefly, ''the Rules of 1994'') carrying of persons in tractor trolley is permitted at the time of Mela, Markets, Religious Functions, Marriages, etc. and the deceased traveled by the tractor for the purpose of Chandrahasini Temple Darshan and while returning home, said accident occurred. Therefore, it cannot be said that the appellants have violated statutory provisions by permitting persons along with deceased to travel in the said tractor trolley for the aforesaid- purpose. Reliance has been placed upon the decision in the case of United India Insurance Co. Ltd. vs. Alka Mangla and other reported in AIR 2008 Del 201 and decision of Supreme Court in case of United India Insurance Company vs. Santro Devei and others reported-in (2009) 1 SCC 558.

We have heard learned counsel for the appellant. Perused the award impugned and the record of the Tribunal.

Indisputably, the deceased along with several other persons by sitting in the trolley went to Chandrahasini Temple Darshan and while returning home, the said accident occurred. As per the policy Ex. D-1 filed by the respondent no. 7/insurance company the policy issued was act only policy. Indrajeet Kaira, Branch Manager of respondent No. 7/insurance company had categorically deposed that under the said policy only the tractor Trolley was insured for agricultural purposesl, Labourers or any other person sitting in the tractor trolley were not insured. The appellant did not ask any question to the Said witness in cross-examination.

The case of a person sitting in trolley attached to a tractor, as a labourer came up for consideration before the Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, wherein the Supreme Court has observed in para 9 to 11 of the judgment as under:

In National Insurance Co. Ltd. V.V. Chinnamma this Court held:

(SCC pp. 701-02, paras 14-16)

An insurance for an owner of the goods or his authorised representative travelling in a vehicle became compulsory only with effect from 14-11-1994 i.e. from the date of coming into force of amending Act 54 of 1994.

Furthermore, a tractor is not even a goods carriage. The expression ''goods carriage'' has been defined in Section 2(14) to mean

any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods

whereas ''tractor'' has been defined in Section 2(44) to mean

a motor vehicle which is not itself constructed to carry and load (other than equipment used for the purpose of propulsion); but excludes a roadroller.

''Trailer'' has been defined in Section 2(46) to mean

''any vehicle, other than semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle''.

A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of ''goods carriage'' as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decision of this Court in Asha Rani New Indian Insurance Co. Ltd. vs. Asha Rani, (2003) 2 SCC 223 and other decisions following the same, as the accident had taken place on 24-11-1991 i.e. much prior to coming into force of the 1994 amendment.

(emphasis in original).

Furthermore, the 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. v. Asha Rani wherein the earlier decision of this Court in New India Assurance Co. V. Satpal Singh was over-ruled. In Asha Rani it was, inter alia, held: (SCC p. 235, paras 25-27).

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 Workmen''s 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-a-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 therefor.

Furthermore, sub-clause (z) 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 party 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." (See also National Insurance Co. Ltd. Vs. Bommithi Subbhayamma and Others, and United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and Others,

Although the effect of 1994 amendment in the Motor Vehicles Act did not call for consideration in Asha Rani, a three-Judge Bench of this Court had the occasion to consider the said question in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, in the following terms: (SCC pp. 7-8, paras 17-19).

By reason of the 1994 amendment what was added is ''including owner of the goods or his authorised representative carried in the vehicle''. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been this that the word ''any person'' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention, there was no necessity of Parliament to carry out an amendment inasmuch as the expression ''any person'' contained in sub- clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.

The observations made in this connection by the Court in Asha Rani case to which one of us, Sinha, J., was a party, however, bear repetition: (SCC p. 235, para 26)

In view of the changes in the relevant provisions in the 1988 Act vis-a-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 therefor.

In Asha Rani it has been noticed that sub-clause (1) of clause (b) of sub-section (1) of Section 147 of the 1988 Act 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. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.

In view of the ratio laid down by the Supreme Court in Oriental Insurance Company case (supra) it is crystal clear that the person travelling in the trolley attached to the tractor are not required to be covered under statutory policy of insurance issued as per Section 147(1) of the Act The word "any person" does not include the person travelling in the tractor trolley carried as passenger in the said vehicle either for hire or reward or otherwise. Indisputably the respondent no. 7/Insurance Company has not undertaken the risk of passenger sitting in the trolley by taking extra premium therefor. The deceased was not owner of the tractor. He was also not driver thereof. He was merely passenger travelling on the trolley attached to the tractor. Therefore, the contention raised by Shri Tiwari that the passengers including deceased sitting in the trolley are third party and covered under the policy of insurance is sans merit. The judgement in case of United India Insurance Co. Ltd-v-Alka Mangla and others (supra) does not support the stand of the appellant. In the said judgement, Single Bench of Delhi High Court in para 13 of the judgment has held that insured and insurer are the first and second party and all others are third parties except that category of persons who may be excluded specifically by the Act or by the contract of insurance. Here passenger sitting in the trolley attached to the tractor is not statutorily required to be compulsorily insured u/s 147 of the Act, therefore, such persons comes in that category of persons who are not required to be covered by the statutory policy under the Act and thus stand excluded.

The Supreme Court in case of United India Insurance Company-v-Santro Devei and others (supra) has held that burden to prove the defence, taken u/s 149 of the Act is upon the insurance company. There is no quarrel with the aforesaid proposition of law, but in the instant case, indisputably neither the risk of passengers sitting in the trolley is required to be statutorily covered under the Act nor was covered by entering into special contract for that purpose by charging extra premium therefor, Therefore, the above case law cited by Shri Tiwari is also of no help to him in the facts and circumstances of the case.

The other question which has been raised by Shri Tiwari is that under Rule 97 (7) of the Rules of 1994, the appellants are authorized to carry persons in the tractor trolley at the time of Mela, Markets, Religious Functions, Marriages.

In order to appreciate the aforesaid contention, it would be appropriate to reproduce the Rule 97(7) which reads thus:

Carriage of person in Goods Carriage-

(1) XXX

(2) xxx

(3) xxx

(4) xxx

(5) xxx

(6) xxx

(7) Notwithstanding anything contained in sub-rules (1) and (2) but subject to the provisions of sub-rule (5) such tractor- trolley other than those registered in the name of Industrial organization, Municipal Institutions, water supply institution and non-agricultural cooperative societies and the unladen weight of which does not exceed 7300 kgs may be used for the following purpose -

(i) for carrying labourers and the member of the family of

a) Agriculturist for the purpose of agriculture or any purpose connected with agriculture including sale and purchase of articles or agriculture.

(ii) For carrying persons at the time of Mela, Markets, Religious Functions, Marriages and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time.

True, the above rule permits carrying of persons in the trolley attached to tractor at the time of Mela, Markets, Religious Functions, Marriages etc. provided that the number of persons so carried shall not exceed 20 at a time. In the light of aforesaid rules, the appellants may not be liable for prosecution due to violation of various provisions of the Act and Rules framed thereunder prohibiting use of vehicle for carrying passengers but it does not mean that under this rule, the insurance company can also be held liable for such persons sitting in the tractor trolley under the statutory policy, because statutory policy does not provide for the liability of the insurer with respect to passengers, who were neither contemplated, at the time, the contract of insurance was entered into, nor any premium was paid to the extent of benefit of insurance to such category of people. Therefore, the point raised is also of no help to him.

At last, Shri Tiwari would contend that the amount awarded is on higher side.

We have examined the award. Claimant/dependents are six in number including widow, three minor children, mother and father of the deceased. Accident occurred in the year 2006. Learned Tribunal has taken into consideration the income of Rs. 2000/- per month of the deceased; applied multiplier of 15 looking to the age of the deceased at the time of accident as 40 years and thus awarded a total compensation of Rs. 3,12,500/- which in our considered opinion cannot be said to be on higher side and this point raised is also sans substance. For the foregoing reasons, we do not find any substance in the instant appeal. The same deserves to be and is hereby dismissed at admission stage.