United India Insurance Co. Ltd. vs Ramkunwar Bai and Others

N.K. Mody, J.—This order shall also govern the disposal of MA Nos. 1605/2002, 1606/2002, 1821/2002, 1822/2002, 391/2003 and 21/2003 as all the appeals arising out of one accident. So far as MA Nos. 1605/2002, 1606/2002, 1821/2002 and 1822/2002 are concerned, they are arising out of claim case Nos. 42/2002, 46/2002, 47/2002 and 43/2002 vide award dated 25.7.2002 passed by MACT, Ujjain. So far as MA Nos. 391/2003 and 21/2003 are concerned, they are arising out of the claim case Nos. 96/2002 and 43/2002. In both these cases the prayer is for enhancement while in MA Nos. 1605/2002, 1606/2002, 1821/2002 and 1822/2002 the prayer is that the appellant/Insurance Company be exonerated.

Short facts of the case are that a motor accident took place on 2.2.2001 by tractor bearing registration No. MP-13/KB/5828 and trolley bearing registration No. MP-13/HB/7526 which was owned by respondent No. 8 driven by respondent No.7 and insured with appellant. The case of claimants before the learned Tribunal was that all the claimants were travelling in the offending tractor for going to Village Jaloda from Village Jharnawada in a marriage party and sustained injuries. The claim petitions were contested by the appellant on the ground that since the tractor was insured with the appellant for agricultural purpose and was being used at the relevant time for other than agricultural purpose, therefore, the Insurance Company is not liable.

After framing of the issues, recorded the evidence, learned Tribunal al lowed the claim petitions and held that the appellant/Insurance Company is liable for payment of compensation.

Learned Counsel for the appellant submits that the learned Tribunal committed error in holding that the appellant is liable for the payment of compensation. Reliance has been placed on a decision of Hon''ble Apex Court in the matter of New India Assurance Company Vs. Shri Satpal Singh and Others, . It is submitted that the law laid down in the aforesaid case is not a good law, as the same was overruled by the subsequent decision in the matter of New India Assurance Co. Ltd. Vs. Asha Rani and Others, , wherein it has been held that the judgment of this Court in Satpal''s case have not been correctly decided. It was held that Insurance Company will not be liable for paying compensation to the owner of goods or his authorised representatives on being carried in a goods vehicles when the vehicle meets with an accident and the owner of goods or his representatives dies or suffers any bodily injury.

It is submitted that further in the matter of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, wherein the law laid down in the matter of Asha Rani (supra) has been further confirmed. Further reliance is placed in the matter of National Insurance Co. Ltd. Vs. V. Chinnamma and Others, wherein it has been held that the law laid down earlier not only in the matter of Asha Rani and Baljeet Kaur but further held that the passengers travelling in the tractor trolley are not covered under the policy and Insurance Company cannot be held liable,

Mr. R.S. Trivedi, learned Counsel for the respondent No.7 placed reliance on a decision of Divisional Bench of this Court In the matter of National Insurance Co. Ltd. Vs. Sarvanlal and Others, wherein it has been held that in a case death of loader travelling In tractor when he fell down due to rash and negligent driving, when he was travelling In a trolley loaded with dowry goods and deceased was travelling as a member of marriage party In the tractor which has not sitting capacity, It his further been held that even assuming that tractor was being used to transport marriage party, Rule 97(7) of Madhya Pradesh Motor Vehicles Rules, 1994 (which shall be referred hereinafter as "Rules, 1994") permits use of tractor for carrying persons for marriage purpose. Learned Counsel submits that the case in hand is an identical case, hence, the appeal deserves to be dismissed.

Sub-clause 1 Rule 97 of the Rules, 1994 reads as under:

Carriage of person in goods carriage--(1) No person shall be carried in a goods carriage other than a bona fide employee or the owner or the hirer and except in accordance with this Rule.

Sub-clause 3 Rule 97 of the Rules, 1994 contains subject to provisions of Sub-rules (5) and (6) a Regional Transport Authority may by an order in writing permit that a large number of persons may be carried in the vehicle on the condition that no goods at all are carried in addition to such persons and such persons are carried free of charge in connection with the work for which the vehicle is used and that such other conditions as may be mentioned by the Regional Transport Authority are observed and where the vehicle is required to be covered by a permit, the conditions of permission aforesaid are also made condition of the permit.

Sub-clause 7(ii) Rule 97 of the Rules, 1994 reads as under:

(ii) for carrying persons at the time of Mela, Markets, Religious Functions, Marriage and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time.

From perusal of the decision of Divisional Bench of this Court Shrawanlal (supra), it appears that none of the decisions of Hon''ble Apex Court i.e. Asha Rani Baljeet Kaur and Chinnamma has been considered by the Hon''ble Divisional Bench. In the matter of United India Insurance Co. Ltd. v. Tilak Singh reported in II (2006) ACC 1 (SC) : 2006 (3) Sup 332, wherein the Hon''ble Apex Court has gone to the extent that the law laid down in the matter of Asha Rani would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owned no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to gratuitous passenger.

In the present cases, undisputedly the learned Tribunal committed error in holding that the appellant/Insurance Company is liable for payment of compensation. Therefore, the MA Nos. 1605/2002, 1606/2002, 1821/2002 and 1822/2002 filed by the appellant/Insurance Company are allowed. The impugned award is modified that the appellant/Insurance Company shall be exonerated from the liability of payment of compensation.

So far as MA Nos. 391/2003 and 21/2003 are concerned, in MA No. 391/2003 learned Tribunal has already exonerated the appellant/Insurance Company. In both the cases the prayer is for enhancement. Mr. Mukesh Parwal, learned Counsel for the appellant submits that in MA No. 391/2003 Prahalad has died and a sum of Rs. 1,44,000 has been awarded by the learned Tribunal. It is submitted that the amount awarded is on lower side. The income of the deceased was assessed @ Rs. 1,500 per month which is not correct as the income of the deceased was Rs. 3,000 per month. It is submitted that no amount has been awarded towards loss of consortium, loss of love and affection, funeral expenses, etc.

From perusal of the award, it is evident that the income of the deceased has been assessed @ Rs. 1,500 per month, after deducting 1/3rd towards personal expenses the loss of dependency assessed Rs. 12,000 per year and after applying the multiplier of 12 a sum of Rs. 1,44,000 has been awarded which appears to be on lower side. The deceased was aged 30 years, as per Second Schedule of Motor Vehicles Act the multiplier ought to have been 17. The appellants are entitled for the following amount:

----------------------------------------- Loss of dependency Rs. 2,04,000 Towards funeral expenses Rs. 2,000 Loss of consortium Rs. 5,000 Loss of love and affection Rs. 15,000 Loss of estate Rs. 3,000 -----------------------------------------

Thus, appellants of this case are entitled for a sum of Rs. 2,29,000 instead of Rs. 1,44,000. The enhanced amount shall carry interest @ 6% per annum from the date of application.

In MA No. 21/2003 the amount awarded is Rs. 17,000 and the appellant who was girl of 17 years sustained injuries. Since the major accident has taken place and appellant sustained number of injuries, therefore, the amount is enhanced from Rs. 17,000 to Rs. 25,000.

With the aforesaid modifications, all the appeals stand disposed of. No order as to costs.