MUBEEN KHAN & ANR vs SHAREEF BEG

The Insurance Company has filed this appeal being aggrieved by the award dated 19.04.2017, passed in Claim Case No.35/2005 by First Additional Motor Accident Claims Tribunal, Bhind, whereby the claim petition filed by the respondents No.1 to 4 for compensation on account of death of Keshav Singh was allowed and compensation of Rs.1,57,000/- was awarded.

The facts in short are that on 3rd March, 2005 deceased Keshav Singh was travelling on tractor bearing Registration No.M.P.30-M.9945, which was owned by the respondent No.5 Mahavir Singh and driven by the respondent No.6 Ramshankar Baghel. It is alleged that at about 6:00 PM, due to rash and negligent driving, Keshav Singh fell down from the tractor and due to which Keshav Singh died. A First Information Report was lodged against the driver of the vehicle at Police Station Raun, District Bhind. After investigation, the charge sheet was filed for commission of offence punishable under Section 304-A of Indian Penal Code, 1860 before the Criminal Court.

The Tribunal after considering the evidence on record passed the award of Rs.1,57,000/- with interest @ 6% per annum till payment is made, as compensation for the death of Keshav Singh against the owner and driver of the offending vehicle and it was directed that the Insurance Company will satisfy the award and thereafter will be free to recover the amount from the owner of the vehicle.

The submissions put forth by learned counsel for the appellant/Insurance company are that the Claims Tribunal committed an error in settling the liability as to payment of the amount of compensation on the part of Insurance Company in spite of the fact that tractor was insured for the agricultural use and not for carrying the passenger. At the time of the alleged accident, the tractor was being used for carrying the passengers and transporting the sand in contravention of the policy conditions. It was also submitted that at the time of accident the driver of the insured tractor was not having valid and effective driving license. In these circumstances, the order passed by the Tribunal directing the appellant to pay the amount of compensation and then to recover from the owner of the vehicle is not sustainable in the eye of law and no liability could be fastened on the appellant- Company. In support of the contentions, the Insurance Company has placed reliance on the judgments in cases of United India Insurance Company Limited Vs. Serjerao and others, 2008(1) T.A.C. 6 (S.C.); and, National Insurance Company Vs. Bakaridan and others, 2017 (1) T.A.C. 24 (M.P.)

Having examined the contentions of the learned counsel for the appellant and perused the Insurance Policy (Ex.D/1), it appears that the offending vehicle was insured between the period from 18.01.2005 to 17.01.2006 with the appellant-Insurance Company under the "agricultural and forestry package insurance policy".

From the statement of eye-witness Paan Singh PW-2, it appears that at the time of accident, the vehicle was used for transporting the sand and the deceased Keshav Singh was travelling on the mudguard of the tractor. In the cases of Aarif and Another v. Urmilabai and others, 2004 A.C.J. 1496; United India Insurance Co. Ltd. v. Kamodi Bai and others, 2007 A.C.J. 2031; and Nathu Singh Kushwaha and Another v. Narayan Singh and others, (2011) A.C.J. 740 and National Insurance Company Vs. Bakaridan and others, 2017 (1) T.A.C. 24 (M.P.), this Court has held that mudguard of the tractor is not meant for carrying passenger and thus, there is no statutory requirement to cover the risk of gratuitous passenger travelling on a tractor.

In the case of Oriental Insurance Company Ltd. v. Brij Mohan and others, 2007(7) Scale 753, the Hon''ble Apex Court has held that so far as the question of liability regarding labourers travelling in trollies is concerned, the Insurance Company has no liability.

In view of the aforesaid decisions, this Court is of the opinion that there is no statutory obligation under Section 147 of the Motor Vehicles Act, 1988 for indemnifying the liability of Insurance Company on behalf of the insured to satisfy the award and in this view of the matter, the finding of Tribunal in respect of payment of compensation by the Insurance Company is not sustainable.

In the result, the appeal succeeds in part. The direction whereby the appellant-Insurance Company was held liable to pay compensation is set aside. The amount of compensation awarded by the Tribunal including the cost of appeal shall be payable by the owner of the offending vehicle in question. Counsel fee Rs.1500/-, if certified.

Since the appellant-Insurance Company has deposited part of the amount under award, the appellant-Insurance Company will be entitled to get the amount deposited by it from the Tribunal.