Munfait vs Oriental Insurance Co. & Others

Lok Pal Singh, J

1) This appeal under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment / award dated 28.02.2011, passed by the Motor Accident Claims Tribunal / Addl. District Judge, Roorkee, District Haridwar, in M.A.C.T. case no. 62 of 2009, Smt. Gulshana and others vs Maherban and others, whereby the learned Tribunal has awarded a sum of Rs.4,74,000/- against respondent no. 1 Insurance Company payable to the claimants within two months with recovery right from the appellant.

2) Brief facts of the case, are that the claimants filed the claim petition no. 62 of 2009, with the averments that on 26.04.2019, at about 07:00 A.M., deceased Mohd. Ahsan was returning to his house situated at Manglaur on his motorcycle. Near Kumar brick kiln, a Mahindra tractor, bearing registration no. U.P. 11Q / 2083, attached with trolley loaded with bricks, which was being driven by its driver rashly and negligently, came from opposite direction and dashed the motorcycle of Mohd. Ahsan, as a result of which he succumbed to his injuries on the spot. The claimants (wife, minor daughter and parents) sought compensation to the tune of Rs. 33,20,000/. The tractor involved in the accident was insured with the Oriental Insurance Co. Ltd. (respondent no. 1 herein)

3) Respondent no. 1 Insurance co. filed its written statement, stating therein, that the tractor along with trolley, which was loaded with bricks, was being used for commercial purposes, whereof the premium has not been paid to use the trolley for commercial purposes. It has also been stated that the tractor at the date, time and place of accident was being plied in violation of terms and condition of the insurance policy.

4) Driver Maherban filed his written statement and denied most of the averments made in the claim petition and has stated that the accident took place due to the rash and negligent driving on the part of the deceased. He further stated that he has no fault in said accident and the liability to pay the compensation, if any, is of the insurance company, insurer of the tractor.

5) Munfait, owner of the tractor, in his written statement reiterated the averments made by the driver Maherban.

6) On the pleadings of the parties, learned Tribunal framed following issues:

i) Whether on 26.04.2009, at about 07:00 A.M., in front of Kumar Brick kiln on Manglaur-Jainpur road, within the jurisdiction of P.S. Kotwali Manglaur, District Haridwar, Mahindra tractor no. U.P. 11Q / 2083, which was being driven by its driver rashly and negligently, dashed the motorcycle no. UA 08K / 0939 of Mohd. Ahsan, after coming from the wrong direction, due to which he succumbed to his injuries on the spot?

ii) Whether the accident took place due to rash and negligent driving on the part of the driver of the motorcycle UA 08K / 0939? If yes, its effect?

iii) Whether the claimants are entitled to get any compensation? If yes, to what extent and from which of the opposite party?

7) The claimants filed documentary evidence viz., copy of chik FIR of case crime no. 25 of 2009; copy of postmortem report; copy of registration of tractor no. UP 11Z / 2083; copy of the insurance policy; copy of charge sheet; copy of site plan; copy of panchayatnama; certified copies of salary certificate.

8) Mrs. Gulshana (wife of the deceased) examined herself as PW1. Ahsan, an eyewitness of the accident and Kurban Ali, clerk of the brick kiln, where the deceased used to work as supervisor, were examined as PW2 and PW3 respectively.

9) Insurance company examined DW1 Upendra Kumar, Investigator of the insurance co., to verify the fact from the office of R.T.O. Saharanpur that Meharban s/o Munfait, driver of the vehicle in question, is having the driving license which was authorized for driving motorcycle and light motor vehicles only. The owner and driver of the vehicle did not adduce any evidence.

10) Learned Tribunal vide impugned judgment and award has recorded the findings on issue no. (i), after evaluating the evidence, that the tractor was driven rashly and negligently by its driver Meharban. It is also observed that the trolley, loaded with bricks was attached to the tractor; the tractor though was insured for agricultural purposes, but trolley carrying the bricks, was not insured at all. Learned Tribunal has also recorded a finding that at the time of accident, driver and owner of the offending vehicle were not having the valid and effective papers. Further, a finding has been recorded that since the tractor attached with the trolley was carrying the bricks, as such, the vehicle was being used for commercial purpose and it was not insured for commercial purposes, which amounts to breach of insurance policy and while recording its findings on issue nos. (i) and (ii) has held that the insurance company is not liable to pay the compensation. While recording the finding fastening the liability to pay compensation to the claimants upon the owner of the driver, the Tribunal has held that the insurance company shall pay the amount of compensation and thereafter recover the same from the owner of the vehicle (appellant herein).

11) I have heard learned counsel for the parties and perused the entire record.

12) Learned counsel for the appellant would submit that an amount of Rs.4,74,000/- has been awarded with a condition that if the amount is not paid within two months, the same shall carry simple interest at the rate of 6% per annum. Learned counsel for the appellant would urge that the tractor was insured for agricultural purposes, therefore, the trolley is not required to be insured. He would further submit that at the relevant time, the tractor-trolley was being used by the owner for own use and not for commercial purposes. It is contended that the necessary issues were not framed.

13) Having considered the submission of learned counsel for the appellant this Court is of the view that though specific issue was not framed by the Tribunal to the effect as to whether at the time of incident the tractor was being used for commercial purposes or agricultural purposes, but the parties were aware as the insurance company has contended that the tractor-trolley was being plied against the policy and the same was being used for commercial purposes in violation of the terms and condition of the insurance policy. The driver and owner of the vehicle in question did not raise the pleading in their written statements that they were using the tractor-trolley for other than commercial purposes and it was not for commercial purposes. They have also not pleaded in their written statements that the vehicle was being used for agricultural purposes.

14) Framing necessary issues is the duty cast upon the Court so that the parties may adduce their evidence on the issues so framed. So far as, non-framing of issues is concerned, firstly, the appellant (owner of vehicle) has not raised the contention that he was not using the tractor-trolley for commercial purposes. Furthermore, the parties were aware of the respective pleadings. It is always not necessary for the Court to frame the issue which does not arise. Assuming that the issue was necessary to be framed, but the fact remains, that there was no pleading that the tractor was plied for agricultural purposes and evidence has come on record that the tractor-trolley was being used for commercial purpose, as such, finding has rightly been recorded in this regard.

15) Another contention of learned counsel for the appellant (owner) is that at the relevant time the tractor was being used for carrying the bricks for his own purpose and not for commercial purposes and his son was driving the vehicle. A perusal of the grounds taken in the memo of appeal would reveal that no plea to this effect has been raised in the written statement or even in the grounds of appeal by the appellant that the trolley was carrying the bricks for own use and not for commercial purposes. The own use of tractor-trolley to carry the bricks is certainly other than the agricultural purposes which amounts to using the tractor for other than agricultural purposes, since the tractor was not insured for commercial purposes. Own purpose is also not agricultural purpose for which the tractor was insured. Assuming that it was for personal purpose, it makes no difference as it was used for other than the agricultural purposes.

16) Mr. Deepak Rawat, Advocate appearing on behalf for the insurance company would submit that since the tractor which was insured for agricultural purposes and the tractor-trolley was used for other than agricultural purposes i.e. commercial purposes, and the same was not insured, therefore, the Tribunal did not commit any error in recording the findings that the tractor-trolley was being used for non-agricultural purposes.

17) Learned counsel for the respondent insurance company placed reliance on a judgment rendered by Hon'ble Apex Court in  National Insurance Company Ltd. Vs Chinnamma and others, 2004 (3) TAC 577 (S.C.). Paragraph nos. 16 and 17 of said judgment are extracted hereunder:

"16. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for 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 any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by the 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 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 the goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in New India Assurance Co. Ltd. Vs Asha Rani and others, (2003) 2 SCC 223 and other decisions following the same, as the accident had taken place on 24th November, 1991, i.e. much prior to coming into force of 1994 amendment."

18) He also placed reliance on a decision of Hon'ble Supreme Court given in the case of Shivaraj vs Rajendra and another, 2018 (4) TAC 1 (S.C.). Paragraph nos. 6 and 9 of said judgment are relevant and the same are being reproduced hereunder:

"6. .... the evidence, however, is unambiguous that the appellant travelled in the tractor which was insured only for agriculture purposes and not for carrying goods. No additional insurance was taken in respect of the trailer rather presence of trailer is not shown or demonstrated in any of the documents and there was no evidence to demonstrate that the tractor was attached to a trailer. The tractor could accommodate only one person namely the driver of the tractor and none else.

The High Court, however, found in favour of respondent no. 2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent no. 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case."

19) Having gone through the findings recorded by the learned Tribunal and on perusal of the facts and evidence available on record, this court is of the firm opinion that the Tribunal has recorded categorical findings on the pleadings and evidence led by the claimants and insurance company that the tractor-trolley was used for other than agricultural purposes and in allowing the claim petition with the right of recovery to the insurance company against the appellant (owner).

20) Learned counsel for the appellant would argue that learned Tribunal has awarded exorbitant amount of compensation to the claimants. In view of this Court, as far as quantum of amount of compensation is concerned, the deceased was working as supervisor and was aged 26 years, and in such a case the notional income has to be presumed to assess the dependency and the loss suffered by the claimants. The Tribunal has assessed the notional income of the deceased at Rs.36,000/- per annum. In the present facts and circumstances of the case, the amount of Rs. 4,74,000/- cannot be said to be unreasonable from any angle, rather the same is on lower side.

21) On a perusal of the judgment and award, this court is of the view that the Tribunal has awarded an amount of Rs. 4,74,000/- as compensation, but no appeal has been preferred by the claimants for enhancement of the claim. This court also feels that it is a fit case for enhancement of claim, but since appeal has not been filed by the claimants and on the appeal filed by the owner of the vehicle, this Court cannot enhance the amount of compensation on the principle that the appellant cannot be reduced to the position worse than, if he could not have appealed.

22) In view of the above, the appeal is liable to be dismissed. The same is hereby dismissed. Interim order dated 12.04.2012 is vacated. No order as to costs.

23) The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. Lower court record be sent back.