1. Heard, Ms. Pooja Arora, Advocate holding brief of Shri S.C. Gulati, learned counsel for the appellants. None appeared for the respondents.
2. The present appeal has been filed against the judgment and award dated 30.11.2002 passed in Motor Accident Claim Petition No.18 of 1998 (Smt. Ganga Dei & Others Vs. Nattha Singh & Others) by Additional District Judge, Court No.6, Rai Bareli, by which the claim of the respondents/claimants no.1 to 4 has been partly allowed and the appellant National Insurance Company Limited has been directed to pay an amount of Rs.55,000/- alongwith interest @ 9% per annum.
3. The claim petition was filed by the respondents/claimants alleging therein that on account of death of brother of Babu Lal on 03.01.1998 the deceased was going back from cycle after cremation while he reached at the turn of Tiwaripur Majre Asaupur in Police Station- Khiro at about 05:30, the driver Vimlesh Kumar @ Mithilesh driving Tractor No.USU-9894, rashly and negligently, smashed the deceased. The deceased suffered serious injuries in the accident and succumbed to it and died on the spot. Other villagers sitting in the trolley also received serious injuries. The driver of the tractor ran away from the spot with the tractor. The accident was seen by Shiv Balak, Ram Dhani, Ram Babu and others sitting in the trolley. The First Information Report was lodged by the respondent/claimant no.3 Ram Pal on 04.01.1998 at about 10:30 AM in the morning at Police Station- Khiro, which was registered as Case Crime No.4 of 1998, under Sections 279, 337, 304 I.P.C. Police Station- Khiro, District- Raibareli. The deceased was 55 years of age and he was Gram Pradhan of the village at the time of accident and doing the business of milk and earning Rs.6,000/- per month. The dependents of the deceased were his wife and three children. Accordingly, they claimed Rs.2,36,000/- as compensation.
4. The written statement was filed by the respondent no.1 stating therein that he was owner of the Tractor No.USU- 9894 but on 07.10.1997 he had transferred its ownership to the Jagat Pal Singh and he has no concern with the tractor now and Jagat Pal Singh is the owner of the tractor. The appellant/respondent no.4, National Insurance Company Limited contested the claim petition by filing written statement denying the accident by Tractor No.USU- 9894. It was further stated that the tractor was not insured and the registration certificate, permit and insurance policy of tractor were not valid. No proof of validity of the license of driver has been filed. Accordingly, there was violation of terms and conditions of policy. The First Information Report / Site Plan / Charge-Sheet etc. have not been filed by the respondents/claimants. The claim petition has been filed in collusion with the owner of the vehicle, etc.
5. The respondents no.2 and 3, the driver and the owner, had filed a joint written statement stating therein that the vehicle was insured on the date of accident and driver was having a valid driving license. The vehicle was registered for the agriculture work. The accident had occurred due to negligence of the deceased. The deceased was agriculture labour. The damages have been claimed exorbitantly. However the compensation, if any, is payable by the Insurance Company.
6. On the basis of pleadings of the parties four issues were framed. The evidence of Smt. Ganga Dei as PW-1, Ram Pal as PW-2 and Kallu as PW-3 were examined on behalf of the respondents/claimant. The appellant/respondent had got examined Shri Akhilesh Kishor Kapoor as OPW-1. The photo copy of the postmortem report of the deceased Chhote Lal and copy of the First Information Report were filed by the respondents/claimants. The respondents no.2 and 3 had filed the photo copy of the registration, copy of the driving license of Vimlesh Kumar, copy of the insurance policy, copy of the charge-sheet and investigation report.
7. After hearing the learned counsel for the parties and considering the evidence and material available on record the learned Tribunal partly allowed the claim petition and awarded the compensation as disclosed above. Hence the present appeal has been filed challenging the judgment and award dated 30.11.2002.
8. Submission of learned counsel for the appellant was that the tractor was registered for agriculture purpose which is meant for only one person therefore the deceased was travelling as gratuitous passenger on it. The respondent/claimant no.3 had lodged the First Information Report on 08.01.1998, stating therein that the uncle had died and he was coming by the tractor to his residece after cremation while the accident had occurred. While in the claim petition as well as in his evidence he had deposed contrary to it and stated that the deceased was coming on cycle and the tractor had smashed. The learned Tribunal after considering the evidence has recorded a finding that though it has been stated in the claim petition that the tractor had smashed the cycle of the deceased Chhote Lal but from the evidence of the respondents it is clear that the deceased was sitting on the tractor and tractor had turned down in which he had suffered serious injuries and died on the spot.
9. He further submitted that the witnesses PW-1 and PW-2 have admitted in their evidence that the villagers were in the trolley therefore tractor was not being used for the agricultural purpose for which it is meant. As such, there was violation of terms and conditions of policy therefore the appellant insurance company is not liable to pay the compensation on behalf of owner.
10. Learned counsel for the appellant has relied on The National Textile Corporation Limited Vs. Naresh Kumar Badri Kumar Jagad & Others; 2011 (29) LCD 1793, National Insurance Company Limited through its Regional Office Vs. Smt. Leela @ Vimla; 2015 (2) T.A.C. 120 (All.) and United India Insurance Company Limited Vs. Hussain Sab and Others; 2006 ACJ 1352.
11. I have considered the submissions of learned counsel for the appellants and perused the record of the F.A.F.O as well as the lower court record.
12. The deceased Chhote Lal had died on account of serious injuries suffered in the accident with Tractor No.USU- 9894 on 03.01.1998. The learned Tribunal, after considering the pleadings and the evidence, has recorded a categorical finding in this regard while deciding the issue no.1. Learned Tribunal after considering the evidence of the PW-1, PW-2, PW-3 and the OPW-1 came to the conclusion that though it has been stated in the claim petition that the accident had occurred as the tractor had smashed the cycle of the deceased but it is clear from the evidence of the respondent that the deceased was sitting on the tractor and suffered serious injuries as it has turned down and died on the spot. It has also come in the evidence of PW-2 that 40-45 persons were sitting in the trolley attached with the tractor at the time of accident.
13. The First Information Report, in regard to the accident in question on 03.01.1998 at 05:30 PM, was lodged on 04.01.1998 at 10:30 AM. The F.I.R. was lodged by Shri Ram Pal son of the deceased Chote Lal. It is mentioned in the F.I.R that the deceased Chote Lal had died in the accident as the driver of the tractor had overturned the tractor, at about 05:30 PM on 03.01.1998, driving it rashly and negligently. A joint written statement was filed by the respondents no.2 and 3 i.e driver and owner of the vehicle specifically stating that the deceased was not a passenger in the vehicle. It has also been stated that the accident had occurred due to negligence of the deceased. PW-1 Smt. Ganga Dei, wife of the deceased Chote Lal, has stated in her evidence that the driver of the Tractor No.USU- 9894, driving rashly and negligently, smashed her husband in which he suffered serious injuries and died on spot. PW-2 Ram Pal son of the deceased Chote Lal has stated in his evidence that the driver of the tractor in question was driving the tractor rashly and negligently and he smashed his father from the front part on account of which he suffered serious injuries and died on the spot. He had also stated that his father had not gone with the dead body and he had gone. PW-3 Kallu has stated in his evidence that Chote Lal was going towards Lalganj from his cycle when driver of the tractor in question, driving rashly and negligently, smashed in the cycle of the deceased from the back side on account of which the deceased suffered serious injuries and died on the spot. None of the witnesses have stated that the deceased was sitting on the tractor or trolley. From the above, no inference can be drawn that the deceased was in the tractor or trolley but it is apparent that he was smashed by the tractor on account of which he suffered serious injuries and died. The insurance company could not elicit anything in the cross examination to create any doubt about it.
14. The OPW-1; Shri Akhilesh Kishor Kapoor, the investigator of the insurance company, has stated in his evidence that in the enquiry he came to know that after cremation of brother of the deceased, people were coming back to village from tractor and trolley and the tractor and trolley had overturned near Tiwaripur village in which many persons got injuries and Chote Lal died. He also stated that the deceased was coming from the tractor trolley. He also proved the investigation report filed as paper no.38 Ga 1/1 to 38 Ga 1/3 which was prepared by him. He further stated that he could not meet to the tractor owner and driver. He also could not disclose the names of the persons from whom he had inquired. The investigation report i.e. paper no. 38 Ga 1/1 to 38 Ga 1/3 is dated 25.06.2001 while the accident had occurred on 03.01.1998 at 05:30 PM. It is no where mentioned in the report that when the Investigation Officer had conducted the investigation. It has been mentioned 'on tractor or trolley' in the investigation report against column no."(i) Is the injured / deceased / pedestrian (s) / scooterist, passenger (s) or such other." Against the column no.(g) how did accident occurred and in the conclusion it is no where mentioned that the deceased was sitting in the tractor or trolley therefore the said investigation report prepared about after three years six months, which is also not specific, coupled with the evidence of the investigator i.e OPW-1 does not inspire confidence and can not be accepted a cogent evidence to record a finding that the deceased was sitting on the tractor. It is also to be noted that at some places it has come that the people were sitting in the trolley but it has no where come that any body was sitting on the tractor therefore this court is of the view that the finding recorded by the learned Tribunal that the deceased was sitting in the tractor is without any substantive evidence or material so it is of no assistance to the appellant.
15. This Court in the case of National Insurance Company Limited through its Regional Office Vs. Smt. Leela @ Vimla (Supra), after considering the provisions of the Motor Vehicles Act, Rules and the Insurance Act and the judgment of the Hon'ble Apex Court alongwith others, has held that the tractor is meant for only one driver and the risk coverage is only for driver and not for passenger therefore insurance company can not be held liable to pay compensation as it is not fit to carry passenger. It is not applicable on the facts and circumstances of the present case.
16. The Hon'ble Apex Court in the case of The National Textile Corporation Limited Vs. Naresh Kumar Badri Kumar Jagad & Others (Supra) has held that as a rule relief not founded on the pleadings should not be granted. But in the present case the relief was claimed on the basis of pleadings.
17. The High Court of Karnataka at Bangalore in the case of United India Insurance Company Limited Vs. Hussain Sab and Others (Supra) has held that the documents produced by the claimants which disclosed that the deceased was travelling in the tractor therefore they can not resile from it and take a different stand in the claim petition for claiming compensation. But in the present case, as discussed above, the documents do not disclose that the deceased was travelling in tractor.
18. Therefore the aforesaid judgments relied by learned counsel for the appellant are not of any assistance to the appellants.
19. The Hon'ble Apex Court in the case of Sunita and Others Vs. Rajasthan State Road Transport Corporation and Others; AIR 2019 SC 994 / MANU / SC / 0204 / 2019, has held that while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.
20. In view of above, this court is of the considered opinion that the learned Tribunal has rightly allowed the claim petition and this court does not find any illegality or error in the impugned judgment and award. The appeal has been filed on misconceived ground, and it lacks any merit, therefore it is liable to be dismissed.
20. The appeal is, accordingly, dismissed. No order as to costs.
21. The lower court record and money deposited before this Court shall be remitted to the concerned tribunal within four weeks from today for adjusting in the compensation to be paid to the respondent/claimants.