Heard learned counsel for the appellants and Miss Pooja Arora holding brief of Sri S.C. Gulati, learned counsel for the insurance company.
These two appeals filed under Section 173 of Motor Vehicles Act involving a common question of law were heard together and are decided by a common judgement. Both the appeals have arisen out of the case of death in the same motor accident. In FAFO No. 305 of 2010, a compensation of Rs. 80,000/- awarded by the Tribunal is the subject matter of dispute whereas in FAFO No. 230 of 2010, the amount involved is restricted to Rs. 67500/-.
In both the cases the liability for payment has been fixed exclusively upon the appellant, although the tractor involved in the accident bearing No. UP34-A-4209 belonged jointly to several other persons as per the registration certificate. Amongst the owners, the appellant alone was chosen to be impleaded as a defendant in the claim petitions. The appellant by means of the present appeals has disputed the liability on the ground that his vehicle i.e. tractor no. UP34-A-4209 was duly insured and was driven by a person possessed with a valid driving licence. Therefore in absence of any violation of the insurance policy, the liability ought to have been fixed upon the insurance company was the case set up by the appellant.
The brief facts of the case are that the claimants in both the claim petitions have averred involvement of two vehicles in the accident and both were insured by one and the same insurance company i.e. New India Assurance Company. There was no mention of a trolley attached to the tractor in so far as the facts set out in the claim petitions are concerned. Likewise the written statements filed by the appellant while disputing the accident did not mention of any trolley attached to the tractor. It was simply pleaded by the owner that the tractor was plied in terms of the insurance policy.
The insurance company in the written statements filed at the initial stage also did not clarify the position as regards the attachment of trolley and it is in these circumstances that the claim petitions proceeded for framing of issues and thereafter the evidence was led. During the course of evidence when PW-1 Vijay Prakash was examined and cross-examined, the trolley attached to the tractor surfaced and it was stated that the same was loaded with 'Jhankhar' (dead wood of Arhar).
It is during the course of evidence that the New India Assurance Company sought amendment in the written statements which were allowed. Thus, two paragraphs viz. 28A and 28B came to be added in the pleadings which read as under:
"28A. The trolley was attached with the alleged tractor as per version of the alleged claimants and alleged F.I.R. Some persons were also sitting on the tractor although the seating capacity of tractor is only one for driver only. The same was not also used for agriculture purpose at the time of disputed accident and was used for hire and reward. Trolley was also unregistered, uninsured, without permit and fitness u/s 66, 56, 39, 61 and 146 MV Act. The same cannot be used and tractor trolley comes under the definition of goods vehicle. As such driver possessing transport vehicle hence can only drive the same. The driver was also not holding valid and effective driving licence. As such the same was deliberately used contrary to MV Act and terms and condition of policy if any and under no circumstances insurance co.-OP No. 3 is liable to pay any compensation and the same is not maintainable against answering OP.
28B. That as per allegations mentioned in claim petition the alleged Smt. Raj Rani was pillion rider on alleged M/cycle UP32 AL/6706 (gratuitous passenger) for which there is no insurance and no premium been charged for covering the risk of pillion rider. As such the answering opp. party is also not liable to pay any compensation."
In the background of pleadings, as aforesaid, the evidence went on to be recorded before the Tribunal. The oral evidence of two persons, namely, Vijay Prakash and Kamlesh Kumar was recorded on behalf of the claimants whereas oral evidence of the owner of the vehicle i.e. the present appellant-Anish (DW-1) and the driver of the vehicle viz Kallan (DW-2) was recorded on behalf of the defendants.
A close scrutiny of the oral evidence led by the claimants as well as the deposition of DW-1 and DW-2 clearly shows that the attached trolley was stated to be loaded with Jhankhar. It is also gathered from the above evidence that the tractor-trolley was stated to be used for agricultural purpose.
The pleadings of the insurance company contrary to the oral evidence referred to above stated that the unregistered trolley was used for a purpose other than agricultural and was thus a transport vehicle used for commercial purpose without a permit, hence there was violation of the insurance cover. It is on this premise that the judgment/order of the Tribunal is sought to be defended by the insurance company i.e. respondent no. 1.
The Tribunal in the backdrop of the pleadings and the evidence aforesaid has dealt with the issues no. 2 and 3 which related to the liability and also as to whether the tractor was operated in terms of the insurance policy or not. It is to be noted that the insurer while disputing the liability to pay had pleaded two distinct grounds against the two vehicles involved in the accident. Insofar as the motorcycle no. UP-32-AL-6706 is concerned, which according to the insurer was duly insured but the same was not driven by a person possessed with a valid licence, therefore, violation of policy was pleaded to dispute the liability to pay. This ground was found favour with by the Tribunal. The legal representatives of the deceased could not prove that the driver of motorcycle possessed a valid driving licence and both the deceased being victim's of their own violation, the dependents-claimants were held entitled to a lesser amount of compensation.
The deceased Rajit Ram was riding the motorcycle upon which his wife Raj Rani, who also died in the same accident, was a pillion rider, therefore, legal representatives of the deceased owing to the degree of negligence and violation of policy contributed by the deceased Rajit Ram and the gratuitous pillion rider who was his wife were denied compensation proportionately.
The claimants had also approached this Court for enhancement of compensation by filing two appeals i.e. FAFO No. 843 of 2010 and FAFO No. 842 of 2010 which have already been dismissed for want of prosecution by orders dated 30.10.2017 and 8.8.2017 respectively.
Now coming to the involvement of the tractor, it is worthwhile to mention that the defence pleaded by the insurer was bound to be analyzed by the Tribunal in the light of the relevant evidence adduced by the parties. It is to be noted that apart from the averments made in the written statement denying the liability, the insurer has not filed any document except paper no. 32-Ga i.e. the insurance policy of the tractor. The cover note of the insurance policy was filed to show that no premium was paid by the owner of the tractor towards the insurance of unregistered trolley of which there was no permit for its commercial use.
Learned counsel for the appellant has argued that even if the tractor was attached to the trolley and the trolley was used for agricultural purpose, it would not require a permit, therefore, the insurance cover of the tractor as per the evidence on record ought to have been construed as valid within its fullest scope i.e. inclusive of trailer.
In support of the submission put forth, learned counsel for the appellant has placed reliance upon a judgement of this Court rendered in FAFO No. 611 of 2013 (United India Insurance Co. Ltd. v. Smt. Suman and others decided on 6.3.2013), which lays down the twin test. The two conditions laid down are that at the time of accident, the tractor trolley must not be operated on a public road and that it is not used for commercial purpose.
Miss Pooja Arora, learned counsel appearing for the insurance company citing a judgement of the apex court in the case reported in 2006 ACJ (1) (Natwar Parikh & Co. Ltd v. State of Karnataka and others), has further clarified the position as to when a trailer attached to the tractor would be construed to be a transport vehicle. Attention of this Court is drawn to Para-24 of the said judgement which clearly lays down that attachment of a trailer to the tractor when used for commercial purpose on public road, would constitute a statutory defence within the ambit of the provisions of Motor Vehicle Act, 1988.
Learned counsel for the insurance company has further argued that in the present case, the evidence available on record cannot be read beyond the scope of pleadings of the claimants and defendants. According to the learned counsel, neither the claimants nor the owner of the vehicle i.e. the appellant herein pleaded before the Tribunal about the attachment of trolley with the tractor nor there is any mention in the pleadings that the tractor even if the trolley was attached, was used for agricultural purpose. According to her, in absence of such pleadings, the oral evidence of the witnesses to the effect that the trolley attached with the tractor was loaded with Jhankhar can not be construed beyond the scope of pleadings to the advantage of the present appellant. The evidence of a party according to the learned counsel cannot be read beyond what was pleaded.
The facts before this Court insofar as the pleadings are concerned do show that the alleged commercial use of the trolley was pleaded by the insurer without leading any evidence whatsoever. Once a pleading alleging use of trolley for commercial purpose without a valid permit was advanced in the written statements by the insurance company, therefore, it cannot be said that there was no pleading at all. The burden to prove such a fact rested on the insurer but he failed to lead any evidence except the cover note. On the contrary the evidence available on record disproving commercial use of the trolley had amply come on record. The Tribunal in such a situation ought not to have failed to apply mind on the relevant oral evidence of the witnesses, according to which, the trolley was not used for commercial purpose. The load on the trolley was indicative of nothing but an agricultural purpose. The material evidence available on record has thus escaped attention of the Tribunal. The judgement cited by learned counsel for the insurance company reported in 2011 (29) LCD 1793 (The National Textile Corporation Ltd. v. Naresh Kumar Badri Kumar Jagad and others) with reference to the case reported in AIR 1987 SC 1242 [Ram Swaroop Gupta (dead) by LRs v. Bishun Narain Inter College & others) is an instance where there was complete absence of pleadings and it is in that situation that evidence could not be read beyond the scope of pleadings. In civil law, the burden to prove a fact lies on the party who has averred and it is that party who has to lead the evidence to prove the alleged fact. The insurer in the present case has failed to lead any evidence in support of the pleas advanced in para 28-A and 28-B extracted above. Therefore, the oral evidence led by the claimants and defendants was relevant and could not be ignored to the advantage of the insurer particularly when he had an opportunity to cross-examine the witnesses.
The insurer in the case at hand had specifically pleaded the involvement of the trolley being used for commercial purpose and having an opportunity of cross-examination of the witnesses produced before the Tribunal, cannot come up in defence and argue that the oral evidence available on record ought not to have been considered by the Tribunal for want of pleadings of the claimants or the owner as such. The proposition of law advanced before the Court, taking support of the decisions cited before this Court, does not help the insurer in the nature of proceeding under the Motor Vehicles Act which is a beneficial legislation. The finding recorded by the Tribunal that the unregistered trolley attached to the tractor required the permit, in my humble consideration, looking to the material available on record, is clearly perverse. The position that the trolley was loaded with 'Jhankar' and nothing was found otherwise in the cross-examination by the insurance company, was a satisfactory proof to belie the stand adopted in paras 28-A and 28-B. The finding so recorded deserves to be overruled and the liability to pay would thus stand shifted upon the insurer to the extent of compensation as has been allowed by the Tribunal.
For the reasons recorded above, both the FAFOs are hereby allowed. The judgement/order dated 23.11.2006 impugned in FAFO No. 305 of 2010 and 3.2.2007 impugned in FAFO No. 230 of 2010 passed by the Tribunal are modified to the extent that the award made by the Tribunal shall be satisfied by National Insurance Company Ltd. and the necessary compliance of the award shall be made within a period of two months from today.
The statutory amount or any other amount deposited in compliance of any order passed by this Court is permitted to be withdrawn by the appellant. The interest on the awarded amount in either of the two appeals is restricted to Rs. 25,000/- or 4% whichever is lesser and the judgement/order passed by the Tribunal is also modified to this extent.
No order as to cost.
Order Date :- 11.2.2021 Fahim/-