Oriental Insurance Co. Ltd vs Srimati Devi And Ors

Learned counsel for the appellant has assailed the impugned award dated 01.08.2016 passed in Compensation case no. 159/2011 passed by learned

Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi whereby the claimants have been awarded compensation to the tune of

Rs.8,59,000/-within 30 days from the date of award along with interest @9% per annum from the date of filing of the case i.e. 27.09.2013 till

realization of amount.

Learned counsel for the appellant has submitted that earlier Rs.50,000/- has already been paid to the claimants under section 140 of the M.V. Act.

Learned counsel for the appellant Insurance company has submitted that photocopy of insurance policy which has been brought on record as

Exhibit-5 with regard to insurance of Tractor bearing registration no. JH-01Q-0633 in the name of Satyendra Nath Sahdeo was valid from 24.07.2010

to 23.07.2011 vide policy no.332200/31/2011/1811. Learned counsel for the appellant has submitted that the deceased Goltu Munda @ Sainath Munda

was a labourer on the said vehicle, as per evidence adduced by the owner of the vehicle/respondent no.4, who at para-10 and 11 of his deposition has

stated that Goltu Munda was earning Rs.6,000/- per month and was engaged as labourer on the tractor. Learned counsel for the appellant has relied

upon the judgment passed by the Apex Court in the case of Oriental Insurance Co. Ltd. v. Brij Mohan & Ors.; 2007 AIR SCW 3734. Learned

counsel for the appellant has further submitted that Insurance Company is not liable to satisfy the award rather the same should have been recovered

from the owner of the offending vehicle as they have violated the terms and conditions of section 149 (2) of the M.V. Act. Learned counsel for the

appellant has submitted that amount already paid under section 140 of the M.V. Act may also be recovered from the owner, apart from the amount

which has been deposited before the learned Tribunal pursuant to the order dated 19.06.2017 passed by a co-ordinate Bench of this Court in I.A.

No.4047 of 2017 filed by the Insurance Company. Learned counsel for the appellant, relying upon the judgment passed by the Apex Court in the case

of United India Insurance Co. Ltd. v. Serjerao and Ors; AIR 2008 SC 460 has submitted that the Insurance Company has no liability. Learned counsel

for the appellant has relied upon the case of Brij Mohan (supra) and Serjerao (supra) and submitted that deceased was not a bonafide passenger

covered under the insurance policy rather being a labourer as stated in para-10 of deposition of the owner of the vehicle, that the deceased was a

labourer and as such, insurance coverage is not for gratuitous passenger.

Learned counsel for the appellant has thus submitted that the appeal may be allowed and the appellant may be discharged from the liability of the

award passed by the learned Tribunal as the same should be payable by the owner of the offending vehicle not by the Insurance Company.

Learned counsel for the Claimants has submitted that the accident took place on 23.02.2011 when the vehicle was duly insured. The claimants have

only received Rs.50,000/- under section 140 of the M.V. Act and the amount deposited to the tune of Rs.4,50,000/- has not been disbursed till date for

which Claimants have filed I.A. No.11165/2018 for modifying the order dated 19.06.2017 so as to disburse the deposited amount in favour of the

claimants.

Learned counsel for the respondent nos. 3 and 4 has submitted that even if there is violation of section 147 of the M.V. Act, even then money has

to be paid by the Insurance Company as it has been held in the case of New India Assurance Co. Ltd. vs. Palani M. Samundeeswari; 2009 SCC

Online Mad 1257 by the Madras High Court and subsequently by the High Court of Judicature at Madras in the case of The Divisional Manager,

United India Insurance Co. Ltd. vs. Kalaivani & Ors. the liability has been fixed upon Insurance Company. To buttress his argument, learned counsel

for the respondent No.3 and 4 has relied upon paras-10, 11 and 12 of the aforesaid judgment which are profitably quoted here under:

“10. It is not in dispute that the 5th respondent had insured the vehicle with the appellant/Insurance Company under Farmers' Package

Insurance, which is valid from 20.10.2010 to 19.10.2011. The certificate of insurance was marked as Ex.P2. The FIR was marked as Ex.P1,

the copy of the RC Book was marked as Ex.P3, Postmortem report was marked as Ex.P1. Considering the oral and documentary evidences,

the Additional Commissioner came to the conclusion that the deceased had died only due to the injuries sustained by him in the accident that

had occurred on 25.06.2011. When the deceased had died in the course of employment, his dependants are entitled for compensation. The

Division Bench of Karnataka High Court in the judgment reported in 2011 ACJ 2054 [Mounesh Vs. Thimmanna and another] held that the

Tractor with a Trailer used for transportation of agricultural produce and other goods would be very much a goods vehicle. Besides, such a

Tractor and Trailer would be a goods carriage within the meaning of Section 2(14) of the Motor Vehicles Act, in which event the risk of

workmen/loaders of the Tractor- Trailer is necessarily to be covered under Section 147 as an Act Policy without collecting any additional

premium. In that view of the matter, the Karnataka High Court held that the insurer would be liable to pay compensation in terms of the

Workmen's Compensation Act. In the judgment reported in 2013 (2) TN MAC 620, this Court held that though the deceased was working as

a cleaner in the Tractor at the time of the accident and no premium was paid to the cleaner under the policy of the above vehicle, when the

Tractor was used for unloading the sand in the land belonging to the owner of the vehicle, it has to be construed that loading and

unloading in the agricultural field by the Tractor has to be part of the agricultural work. Therefore, this Court held that the Insurance

Company is liable to pay compensation, though no separate premium was paid in respect of the cleaner under the Policy.

The ratio laid down in these two judgments squarely applies to the facts and circumstances of the present case. In the case on hand, the

deceased was loading sugarcane reeds in the Tractor-Trailer and he fell down from the Trailer and had died due to the head injuries

sustained by him.

It is pertinent to note that the entire Insurance Policy was not marked by either of the parties. Only the Certificate of Insurance was

marked by the claimants as Ex.P2. That apart, as per the judgment referred above, though no separate premium has been paid in respect of

the loader/workman in the Tractor-Trailer, when the Tractor-Trailer was used for transportation of the agricultural produce, the

appellant/Insurance Company is liable to pay the compensation. The appellant could have marked the entire Insurance Policy in respect of

the Tractor and substantiated their case. However, they chose not to mark the Insurance Policy before the Additional Commissioner.

Therefore, I am of the considered view that the Additional Commissioner has rightly held that the appellant is liable to pay the

compensation.â€​

Learned counsel for the Owner of the offending vehicle has thus submitted that even if section 149 (2) of the Motor Vehicles Act has been violated

by the owner, the award is to be satisfied by the Insurance Company as the vehicle was duly insured and the deceased Goltu Munda was a

representative of the authorised person, as such, the impugned award does not require any interference by this Court as the deceased Goltu Munda

was covered under the policy. The Insurance Company has taken 2% extra permium in the said insurance policy in which authorised persons are

covered by the insurance policy, as such, impugned award does not require interference by this Court and the appeal deserves to be dismissed.

Heard, learned counsel for the parties, perused the impugned award and the lower court records. It appears that on 23.02.2011 offending vehicle

H.M.T. Tractor bearing registration no. JH-01Q-0633 loaded with stones and boulders was passing near Amlesha Basti, P.S. Tamar, District-Ranchi,

due to slope got turned over resulting four labourers carrying on the said tractor became injured, out of them deceased Goltu Munda @Sainath Munda

became unconscious and was brought to RIMS, Ranchi, where he was admitted at 11.30 A.M. and died on the same day at about 3.15 P.M during

treatment. The post mortem of the deadbody was conducted at RIMS, Ranchi and report was submitted vide P.M. report No.384/11 dated

24.02.2011. F.I.R. was also lodged at Tamar Police Station vide Tamar P.S. Case No.29/11 dated 07.03.2011 against unknown driver of the tractor

for the offence u/s 279 and 304A of IPC. After investigation charge sheet was submitted against Rajesh Seth, driver of the offending vehicle tractor,

for the offence u/s 279 and 304A of IPC being charge sheet no.57/11, dated 07.05.2011.

The claim application was filed before the learned Tribunal on 27.09.2013 by the wife and minor daughter of the deceased under section 166 of the

M.V. Act, stating therein that deceased was in the age group of 23 years and was earning an amount of Rs.6,000/- per month by working as a

labourer. Due to his sudden death, his wife and minor daughter both were deprived from economic support, love, affection and guardianship of the

deceased.

The O.P. No.1 and 2, Rajesh Seth and Satyendra Nath Sahdeo, driver and owner of the offending vehicle tractor, respectively filed written statement

stating therein that the vehicle was duly insured with Oriental Insurance Company Limited, Ranchi, vide policy no.332200/31/2011/1811. It was driven

by O.P. No.1, Rajesh Seth, who possessed valid and effective driving license for driving the said vehicle vide D.L. No.3583/07 issued by the District

Transport Office, Ranchi and there was no any negligence on the part of the driver during driving the said vehicle, therefore, both these O.Ps. are not

liable to pay any compensation rather the vehicle was insured, as such, the award should be passed against the Oriental Insurance Company Limited.

The Oriental Insurance Company has filed its written statement as O.P. No.3 and admitted the fact that the vehicle was duly insured at the time of

accident but has pleaded that unfortunate victim Goltu Munda was himself responsible for his death and it is the settled principle of law that the

deceased cannot claim compensation from any other person for his own fault, as the deceased was forcibly sitting on the tractor and there was no

rashness or negligence on the part of the driver of the tractor, therefore, this O.P. is not liable to pay any compensation to the applicants.

The Tribunal has framed altogether six Issues which are as follows:

“1. Whether the claim application as framed is maintainable

Whether the claimants have valid cause of action for the case?

Whether death of the deceased namely Goltu Munda @Sainath Munda resulted to the accident as alleged due to rash and negligent

driving of the Tractor bearing registration No. JH-01Q-0633?

Whether there is violation of the terms and conditions of the insurance policy by the insured/owner of the tractor?

Whether the applicants are entitled for compensation as claimed, if yes, against whom and to what extent?

To what relief or reliefs, if any, the claimants are entitled to?â€​

On behalf of the applicants following oral witnesses have been examined in support of the case:

A.W.1- Srimati Devi

A.W.2- Laxmikant Pramanik

On behalf of the applicants following documents have been marked as exhibits:-

Exhibit 1- Certificate regarding members of family of the deceased Goltu Munda @Sainath Munda issued from office of the C.O. Tamar,

Ranchi vide letter No.51, dated 26.05.14.

Exhibit 2- Certified copy of FIR of Tamar P.S. case No.29/11, dated 07.03.2011

Exhibit 3- Certified copy of Chargesheet vide charge sheet no.57/11, dated 07.05.11 against driver namely Rajesh Seth driving of the

offending vehicle Tractor at the material time of the accident, for the offence u/s 279 and 304A of I.P.C.

Exhibit 4- Photo copy of postmortem report of the deceased namely Goltu Munda @ vide P.M. report No.384/11 dated 24.02.2011.

Exhibit 5- Photo copy of insurance policy issued by O.P. No.3, Oriental Insurance Co. Ltd. vide policy No.332200/31/2011/1811 for the

offending vehicle tractor bearing registration No.JH-01Q-0633 in the name of Satyendra Nath Sahdeo valid from 24.07.10 to 23.07.11.

Exhibit 6- Photo copy of certificate of registration vide bearing registration No.JH-01Q-0633 in the name of Satyendra Nath Sahdeo.

Exhibit 7- Photo copy of driving license vide D.L. No.3583/07 valid up to 18.06.10 in the name of Rajesh Seth driving the offending vehicle.

Exhibit 8- Death certificates of the deceased namely Goltu Munda @Sainath Munda, r/o of village Burudih Amlesha, P.S.-Tamar, Ranchi.

On behalf of the O.P. No.1 and 2 following oral witnesses examined in support of the case-

O.P. witness no.l -Rajesh Seth,

O.P. witness no.2- Satyendra Nath Sahdeo

On behalf of O.P. No.1 and 2 following documents have been marked as exhibits-

Exhibit A- Original copy of driving license of Rajesh Seth vide D.L. No.3583/07, for tractor only valid from 19.06.07 to 18.06.10 and again

valid and renewed up to 18.06.13, from office of the D.T.O., Ranchi.

Exhibit B- Original copy of the insurance policy for the offending vehicle tractor bearing registration no. JH-01Q-0633 vide policy no.

332200/31/2011/1811 in the name of Satyendra Nath Sahdeo valid from 24.07.10 to 23.07.11.

Exhibit C- Certificate of fitness for the vehicle No. JH-01Q-0627 trailer valid up to 11.07.11.

Exhibit D- Certified copy of judgment passed by the court of Ld. J.M. 1st Class, Ranchi Sri S.D. Tripathy, in G.R. Case No.1106/11/trial No.

1093/14 dated 09.09.14 in case of State vs. Rajesh Seth.

Exhibit E- Money receipt for the payment of wages amount of Rs.6000/- paid to Srimati Devi on 10.03.11 for the work of labourer done by

the deceased Goltu Munda for the month of February 2011.

No evidence has been adduced on behalf of the Insurance Company.

It appears that vehicle was duly insured but not for the gratuitous passenger. Goltu Munda was working as a labourer as per the evidence of the

owner of the vehicle, Satyendra Nath Sahdeo, O.P.W.2 in para-10 of his deposition as well as driver of the offending vehicle Rajesh Seth who has

been examined as O.P.W.1 in para-11 and 12 of his deposition. From the insurance policy, it appears that the vehicle was insured but not for

gratuitous passenger in view of judgment of Brij Mohan (supra) and Serjerao (supra), under which the case is squarely covered and as such, the

Insurance Company cannot be held liable for the same. The judgment relied upon by the counsel for the owner is not applicable in the present facts

and circumstances of the case as the Hon'ble Madras High Court has taken a view that only the certificate of insurance was marked by the claimant

as Exhibit P-2. Apart from that as per the judgment referred above though no separate premium has been paid in respect of nodal workman in the

tractor-trailer, when the tractor-trailer was used for transportation of agricultural produce, the Insurance Company is liable to pay the compensation.

The appellant could have marked the entire insurance policy in respect of the tractor and substantiated their case. However, they chose not to mark

the insurance policy before the Additional Commissioner. Therefore, in considered view, the Additional Commissioner has rightly held the appellant

liable to pay the compensation.

The fact of that case was different from the present case. In that case, there was agricultural produce loaded on the tractor whereas in this case the

tractor which was insured for agriculture purpose was loading stones and boulders, as such, this case is distinguishable from the judgment passed by

the Hon'ble Madras High Court.

Considering the above discussion as made hereinabove, this Court is of the opinion that the vehicle was insured, as such, the Insurance Company is

directed to satisfy the award passed by the learned Tribunal with interest @7.5% from the date of filing of the application within a period of 90 days

from today. Thereafter the Insurance Company shall recover the same from the owner of the offending vehicle in view of the judgment passed by

Apex Court in the case of Oriental Insurance Company versus Najappan & Ors. AIR 2004 SCW 952 as well aMs anuara Khatun and Others vs.

Rajesh Kumar Singh & Ors.; (2017) 4 SCC 796.

The Tribunal shall proceed in accordance with law. Needless to say that Insurance Company has every right to recover the same from the owner

of the offending vehicle, who has violated the terms and conditions of the insurance policy as the deceased was a gratuitous passenger, who is not

covered under the insurance policy.

Accordingly, the appeal is allowed with above modifications.

The statutory amount of Rs.25,000/- deposited by the Insurance company (appellant) before this Court at the time of preferring this appeal shall

be refunded/returned by the Registrar General of this Court within a period of four weeks from the date of filing of the requisition.

If the cheque of Rs.4,50,000/- which has been deposited by the Insurance Company pursuant to the order dated 19.06.2017 if not already been

processed, the same shall be returned to the Insurance company on production of receipts of payment of the entire compensation amount along with

interest.

I.A. No.11165/18 is accordingly disposed of.

The L.C.R. shall be returned to the learned Tribunal.