Oriental Insurance Company Limited vs Shyam Bai

Sachin Singh Rajput, J

This appeal under Section 173 of the Motor Vehicle Act (for short “MV Act”) is against the impugned award dated 10.05.2019 passed by Motor Accident Claims Tribunal (for short “Tribunal”) Bilaspur, CG, in Claim Case No. 137/2018.

By the impugned award learned Tribunal awarded a compensation of Rs. 7,10,400/- in favour of respondents/claimants on account of death of Manoj Kumar. He met with an accidental death being employed as a helper in a tractor trolley bearing registration No.CG-29-A-0753 attached to Tractor No. CG-29-A-0752 which was carrying bricks to village Morga and that on account of its driver having lost control, it turned turtle and caused the acci-dent and resultant death Manoj Kumar. Said vehicle at the relevant time was driven by respondent No.3, owned by respondent No.4 and insured with the appellant herein. Accident was reported to the concerned police station where Crime No. 174/2017 was registered for the offences punishable under sections 279, 337, 304-A IPC and sections 5/180 and 3/181 of the Motor Ve-hicles Act. Pleadings further reflect that at the time of accident the deceased was aged about 20 years and was earning Rs. 10,000-15,000/- per month as a labourer. Claimants herein are the parents of the deceased.

Driver and owner of the offending vehicle remained ex parte and did not file any written statement. Appellant/Insurer however filed the written statement and averred that the deceased along with other labourers was sit-ting in the trolley; that the driver of the offending vehicle was not holding the licence to drive the vehicle in question, and therefore he was prosecuted for the offence under Section 3/180 and 5/180 of MV Act. It is pleaded that as the offending vehicle was used for the purpose other than the agricultural one and the deceased was travelling as gratuitous passenger, that only the risk of driver was covered and no premium for covering the risk of other per - son was taken, therefore, the insurance company is not liable to pay any compensation to the claimants.

Counsel for the appellant submits that the finding recorded by the Tri-bunal holding the appellant/insurer liable to satisfy the award is perverse and contrary to law. It is submitted that the deceased was travelling as a gratu-itous passenger and the driver of the offending vehicle was not having the valid and effective driving licence. Reliance is placed on the decisions of the Supreme Court in the matter of Oriental Insurance Company Limited v. Brij Mohan and others reported in (2007) 7 SCC 56;  in the matter of New India Assurance Co. Ltd. v. Vedwati reported in (2007) 9 SCC 486, and the decision of the Division Bench of this Court in the matter of United India Insurance Co. Ltd. v. Kunti Bai and others reported in 2012 (4) CGLJ 128.

From the statement of Jitendra Kumar Sinha (NAW-1/3) it is estab-lished that sitting capacity of the offending vehicle is one but at the time of accident apart from the driver, three other persons were sitting in the trolley and that the deceased was not covered by the insurance policy. Tribunal has thus committed an error in recording a finding that since the offending vehicle was insured with the appellant and it has not been established by it that there was any breach of the terms and conditions of the insurance policy, it is liable to pay compensation. Law in regard to the issue involved in this case is no longer res integra. In the matter of Oriental Insurance Company Limited v. Brij Mohan and others (supra) it has been held by the Supreme Court as un-der:

“10. Furthermore, 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 & Ors. [(2003) 2 SCC 223] wherein the earlier decision of this Court in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237] was overruled. In Asha Rani (supra) it was, inter alia, held :-

"25. 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 Workmens 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-`-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 (i) 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 property 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."

Similarly, in the matter of New India Assurance Co. Ltd. v. Vedwati (supra) it has been held as under:

11.The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act"). There is no reference to any passenger in "goods carriage".

The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehi-cle insured for any passenger travelling in a goods carriage and the in-surer would have no liability therefor.”

Following the above decisions of the Supreme Court and this Court discussed above in the case of Beer Narayan Singh v. Ghanshyam re-ported in 2016 (4) TAC 44 it has been held by the Division Bench of this Court as under:

“27 As far as no passenger is permitted to be carried in the tractor or even in the trolley attached with the tractor is concerned, the tractor and the trolley were registered for agricultural purposes which only means that only agricultural produce could be carried in the tractor and trolley. A passenger is not supposed to be carried in the tractor or trolley except for the sitting capacity available in the tractor or trolley except for the driver. Therefore, the insur-ance company cannot be held liable for payment of compensation in a case of suffering injury or death of a person, who was travel-ling in the tractor and trolley as an authorized or gratuitous pas-senger.

Even in the registration certificate, the sitting capacity in-cluding the driver is shown to be one. Therefore, the insurance company was rightly absolved of the liability to pay compensa-tion.”

Thus from the aforesaid factual and legal discussion, it is apparent that in this case the owner of the offending vehicle had not paid any extra premium covering risk of the passengers who would be sitting in the trolley attached to the tractor. Unless there is a premium paid by the owner, it can-not be said that there was a contract entered into between the insurer and the insured by accepting the extra premium covering the risk of the passen-gers who may travel in the trolley of the tractor. Thus the appellant/Insurance Company is thus exonerated of its liability to pay compensation to the claimants.

Accordingly, the appeal is allowed and the appellant – Insurance Com-pany is exonerated of its liability to satisfy the award. However, considering judgments of the Supreme Court in the matter of National Insurance Com-pany. Ltd. v. Swaran Singh and others reported in (2004) 3 SCC 297 and in the matter of - National Insurance Co. Ltd., Vs Challa Bharathamma and others reported in 2004 ACJ 2094, this Court directs the appellant to first satisfy the award and then it may recover from the owner of the offend - ing vehicle.