The Branch Manager, The New India Assurance Co. Ltd. vs Panchali and Others

S. Vimala, J.—As against the claim made for a sum of Rs. 10,00,000/-, the legal representatives of the deceased, i.e., claimants 1 to 6

(parents, husband, children and brother) were awarded a sum of Rs. 4,05,500/-, which were ordered to be payable jointly and severally by the

owner and the insurer of the offending vehicle. Challenging the liability to pay the compensation and the quantum, the Insurance Company has

preferred this Appeal. The Appeal has been filed mainly on the following grounds:-

(i) The offending vehicle, namely, the tractor and trailor should be used only for agricultural purposes and not for commercial purpose and that, as

the vehicle on the day of accident was put into use for commercial purpose, namely, the purpose of supplying water to Municipality, there is

violation of terms and conditions of the policy and therefore, the Insurance Company is not liable.

(ii) The deceased was sitting in the mudguard of the tractor at the time of accident and therefore, it is a case of invited death for which neither the

owner nor the Insurance Company is liable to pay the compensation.

(iii) The multiplier cannot exceed more than ''12'', when the age of the victim was only 34; the amount awarded is liable to be scaled down.

To appreciate the contentions raised in the grounds of Appeal, it is necessary to look into the mode of accident.

It is the allegation in the claim petition that the deceased was employed as a Coolie for the purpose of filling up the water and while he was

travelling in the Tractor, he fell down on account of the rash and negligent driving and he died. Ex. P-3 is the Insurance Policy of the Tractor,

bearing Registration No. TN23-Y-2003. Through R.W. 1, an employee of the Insurance Company, Ex. R-1 Investigation Report and Ex. R-2-

R.C. Book have been filed. Under Ex. R-1 the Investigation Report of the Insurance Company, the deceased Ravi has been described as a

Coolie.

According to the contention of the Insurance Company, there had been violation of permit conditions and therefore, the Insurance Company is

not liable to pay the compensation.

4.1. The Insurance Policy (Ex. P-3) of the tractor alone has been filed and the copy of the policy pertaining to the Trailor has not been filed. When

it is the contention of the Insurance Company that there had been violation of the policy conditions, it is for the Insurance Company to have

produced the policy along with the terms and conditions of the policy. The Insurance Company has not filed the same, except mentioning the policy

number in the investigation report, as contended by the learned counsel for the respondents.

4.2. Under Ex. P-3 Insurance Policy, premium has been paid, covering the load man. Finding that the deceased had been a load man, the Tribunal

has held that the deceased is covered by the policy of insurance and therefore the insurance company is liable. Describing the physical features of

the tractor, the Tribunal has given a finding that there had been a place allotted for the cleaner or the load man to sit in the tractor.

4.3. The learned counsel for the appellant relied upon a decision reported in 2011 (1) TN MAC 602 (National Insurance Company,

Gobichettipalayam v. Guruswamy and others) where-under it was held that when the claimants were travelling in the goods vehicle, having zero

seating capacity, and when the policy prohibited carrying of anybody excepting the driver, then the Insurance Company is not liable.

4.4. This decision has been given pertaining to Minidoor goods vehicle having zero seating capacity. But, so far as this case is concerned, the

Tribunal has described, how seating place has been provided for one more person to sit, apart from the driver. Moreover, the policy covers the

load man also. Therefore, the Insurance Company cannot escape from the liability to pay the compensation.

4.5. The learned counsel for the appellant also relied upon the decision reported in Ravunammal and Another Vs. Sambandham and Others, and

contended that even the Insurance Company is made liable, then liberty must be given to recover the compensation from the owner of the vehicle.

4.6. In the decision, referred to supra, it has been held that when the deceased/cleaner of the tractor trailor was found travelling, sitting on

mudguard, the owner must be made liable for allowing the cleaner to sit on the mudguard and therefore, the Insurance Company, even though not

liable, must pay the compensation and recover it from the insured owner.

4.7. Even though, in principle, this decision would be applicable, still having regard to the circumstances available in this case, pay and recover

principle cannot be applied.

4.8. When it is the contention of the Insurance Company that there is violation of policy conditions, the Insurance Company ought to have

produced the Insurance policy, before the Tribunal. The Insurance Company failed to produce the policy. It is only the claimant, who produced the

policy of the tractor alone and not the trailor. Therefore, in the absence of production of the Insurance Policy and consequent failure on the part of

the insurance company to discharge the burden of proof, the Insurance Company alone is liable to pay the compensation.

4.9. Learned counsel for respondents 1 to 7 relied upon the following decisions, in order to support the proposition that it is only the Insurance

Company, which is liable to pay the compensation, even in respect of the death of the person, sitting on the mudguard of the tractor.

(i) Chairman, Rajasthan State Road Transport Corporation and Others Vs. Smt. Santosh and Others, . It has been held, in the case cited, that

tractor is a motor vehicle, as defined in the provisions of the Motor Vehicles Act and the tractor is not only used for agricultural purposes, but it is

also used for different purposes. It has been clarified that it is open to the statutory authorities to make exemption by issuing a notification or

circular, specifically, if such vehicle is exclusively used for agricultural purposes, but for that, sufficient specifications have to be provided, so that it

cannot be used for commercial purposes. The relevant observation reads thus:-

The Tractor is a machine run by diesel or petrol. It is a self-propelled vehicle for hauling other vehicles. It is used for different purposes. It is

also used for agricultural purposes, along with other implements; such as harrows, ploughs, tillers, blade-terracers, seed-drills etc. It is a self-

propelled vehicle capable of pulling alone as defined under the definition of Motor Vehicles. It does not fall within any of the exclusions as defined

under the Act. Thus, it is a Motor Vehicle in terms of the definition u/s 2(28) of the Act, which definition has been adopted by the Act. So, even

without referring to the definition of the Tractor, if the definition of the Motor Vehicle as given under the Act is strictly construed, even then the

Tractor is a Motor Vehicle as defined under the Act. The Tractor is not only used for agricultural purposes but is also used for other purposes as

stated above. Therefore, it cannot be said that the Tractor in its popular meaning is only used for agricultural purposes and, thus, is not a Motor

Vehicle as defined under the Act. The Tractor is a Motor Vehicle is also proved by this definition u/s 2(44) of the Act. Different types of Motor

Vehicles have been defined under the provisions of the Act, and the Tractor is one of them. Thus, considering the question from any angle, the

Tractor is a Motor Vehicle as defined under the Act.

(ii) The New India Assurance Company Ltd. Vs. Govindaraj and Ariraman . The insurer, having accepted the premium for an employee under the

Insurance Policy for tractor, cannot contend that no one can travel in the tractor. Once insurer accepted a premium for an employer, in the policy

for tractor, employee travelling in tractor is covered under the policy. Therefore, the Insurance Company is liable. The relevant observation reads

thus:-

According to the appellant, the deceased was travelling in the Trailor which was not covered. Ex. R1, is the Insurance Policy under which a

premium has been paid for an employee. If the Insurance Company takes the plea that no one can travel in a Tractor along with the driver, the

acceptance of the premium for an employee is questionable? Once the insurance company accepted a premium for an employee in a policy for a

Tractor then the employee who was travelling in the tractor is covered under the policy. There is no bar that he cannot travel in the Tractor along

with driver. Necessarily he has to travel in the Tractor or in any other vehicle attached to the Tractor for which it is engaged. In this case, the

Insurance Company is liable to pay the compensation and it cannot escape from such liability.

4.10. It will be relevant to quote the decision reported in New India Assurance Co. Ltd. Vs. Ram Kishore and Others, where-under it was held

that, when the Insurance Company pleaded that the tractor was insured only for agricultural purposes and the photo copy of the policy produced

did not contain the condition that tractor was insured for agricultural purposes only, the Insurance Company was liable.

In this case also, the Insurance Company failed to produce the original Insurance Policy. The implication is that, if the policy is produced, it

would stand against the interest of the insurance company. The non production of the policy itself speaks volume about the liability of the insurance

company.

5.1. Therefore, the Appeal has no merits and the Appeal is liable to be dismissed. In the result, the appeal is dismissed. No costs.