The instant appeal has been preferred by the appellant under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 21.07.2003, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Lakhimpur Kheri in Motor Accident Claim Petition No.151 of 1999; Smt.Biddo Devi and others Vs. Ram Kumar and others.
The facts of the case are that on 23.09.1999 driver Ramesh, son of Jagannath, resident of Odarahana came to the house of Chhotey Lal and took him in his tractor (Mahindra). While they were going by the Tractor on pacca road, east of Laukiha, after seeing another tractor no.UP-31-C-1055, driver Ramesh started following it, but due to rash and negligent driving of tractor no.UP-31-C-1055 by its driver, their tractor turned over, as a result of which Chhotey Lal sustained injuries and died on the spot. The post mortem examination of the deceased Chhotey Lal was conducted on 24.09.1999. Thereafter his cremation was done by the claimants/respondents. The incident took place due to rash and negligent driving of tractor No.UP-31-C-1055 by its driver. Due to death of the deceased the future of the claimants/respondents had become ruined as they had no other source of livelihood. The deceased Chhotey Lal was working at the Chakki of Ram Kumar, the owner of tractor and his salary of three months amounting to Rs.3200/- was due. The claimants/ respondents nos.1 to 3 filed the claim petition No.151 of 1999 for an award of Rs.2 lakh as compensation. The claimants were mother and brothers of the deceased and they were dependent on the deceased and due to death of deceased they were deprived from love and affection of the deceased.
The written statement was filed by the respondent no.4-Ram Kumar, owner of the vehicle (now deceased). He pleaded therein that at the time of alleged accident the tractor in question was being driven by an experienced driver; Ramesh Kumar at moderate speed and driver was having valid and effective driving licence. It was further stated that the vehicle in question was insured with the Oriental Insurance Company at the time of accident. Accordingly the claimants/ respondents are entitled to get compensation, if any, from the Oriental Insurance Company. On the basis of above, he prayed that he should be exonerated from the liability to pay the compensation.
The Oriental Insurance Company Ltd.; the present appellant, filed a written statement stating therein that the claimants and owner of the tractor are specifically required to prove that at the time of alleged accident the said vehicle was being used for the same purpose for which it was registered and insured. The claimants have not come with clean hands. The claimants have no locus standi against it. Accordingly it is not liable to pay any amount of compensation. Further it was stated that the driving licence etc. are required to be proved by the claimants. It was also pleaded that the Insurance Company is entitled for the protection under the provisions of Section 147, 149 and 170 of the Motor Vehicles Act. Further it was pleaded that the driver of the vehicle had no valid and effective driving licence at the time of alleged accident. The income of the deceased is exaggeratedly been disclosed only to increase the amount of compensation. It was also pleaded that the tractor in question was not insured for travelling the passengers. The deceased was sitting on the tractor at the time of alleged accident, which is against the terms and conditions of the policy, hence the claim petition is liable to be dismissed.
It appears that the opposite party no.5-Ramesh Kumar; driver had not contested the case and had not filed any written statement. On the basis of the pleadings of the parties four issues were framed. On behalf of claimants carbon copy of the post mortem report of Chhotey Lal, carbon copy of G.D. Entry, written report, Cover note were filed On behalf of opposite party no.1-Ram Kumar, owner of the vehicle photostat copy of Registration Certificate, one cover note policy and one photostat copy of driving licence, photostat copy of policy regarding tractor No.UP-31-C-1055 were filed.
From the side of claimants/respondents No.1-Biddo Devi, No.2-Tulla Ram and No.3-Maya Ram were examined as P.W.1, P.W.2 and P.W.3 respectively. However, no witness was examined from the side of any of the opposite parties.
After considering the pleadings of the parties and hearing the learned Tribunal partly allowed the claim petition vide judgment and award dated 21.07.2003, passed in Claim petition No.151 of 1999 and awarded an amount of Rs.1,84,500/- with 6% per annum interest thereon payable from the date of presentation of the petition, which was to be paid to the claimants-respondents in the manner provided in the operative portion of the impugned judgment and award.
Being aggrieved with the judgment and award, the appellant-Oriental Insurance Company Ltd. has preferred the instant appeal challenging the judgment and award dated 21.07.2003.
During pendency of the present appeal the respondent no.1-Smt. Biddo Devi and respondent no.4-Shri Ram Kumar died. Accordingly name of respondent no.1 was deleted and his two sons Ranjeet and Vinod, have been substituted vide order dated 08.05.2018.
Heard Shri Mukund Tiwari, learned counsel for the appellant, Shri Kapil Dev Srivastava, learned counsel for the opposite party nos.2 and 3 and Shri Vimal Kishore Verma, learned counsel for opposite party No.4/1 and 4/2. Respondent no.5 had not appeared despite service.
Learned counsel for the appellant submitted that P.W.3-Maya Ram in his statement had stated that about three years before soil work of P.W.D. Road of Laukiha was going on and soil was carried by tractor. Chottey Lal (deceased) was working at a tractor. The said accident took place at a distance of 2 kms. from Laukhia village due to rash and negligent driving of the driver of tractor No.UP-31-C-1055 and nothing has come contradicting it, which clearly proves that the tractor was not being used for the agricultural purposes for which it is meant. In this regard learned counsel for the appellant has relied on the definition of tractor given in M.V.Act 1988 and agricultural tractor given in Central Motor Vehicle Rules 1989.
Section 2(44) of the Motor Vehicles Act, 1988 is reproduced as under:-
"tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller."
Rule 2(b) of Central Motor Vehicles Rules, 1989 is reproduced as under:-
"agricultural tractor" means any mechanically propelled 4-wheel vehicle designed to work with suitable implements for various field operations and/or trailers to transport agricultural materials. Agricultural tractor is a non-transport vehicle."
It has further been submitted that the tractor was not insured for the passengers. The premium, which was paid by the owner of the tractor, was only in respect of liability of public i.e. a third party and paid driver/workman no.1 and for own damage. No premium was paid for the passengers.
Accordingly taking into consideration the aforesaid Rules as well as Section 147(1)(b)(ii) and 147(5) of the Act, the Insurance Company is not liable to pay compensation to the claimants in the case in hand as the tractor is not meant for carrying any load (other than equipment used for the purpose of propulsion) but excludes the road-roller. Once it is established by the evidence of P.W.3-Maya Ram that the tractor was being used for the purpose of carrying soil and the deceased Chottey Lal was travelling on the tractor, there was clear violation of the Act, Rules and terms and conditions of the policy.
Section 147 (1)(b)(ii) and 147(5) of the Act , on reproduction, reads as under:-
"147. Requirements of policies and limits of liability-(1)........
(b).......
(ii)- 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.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
On the basis of above, the submission is that since the tractor in question was being used in contravention of the statutory provisions and terms and conditions of policy so the appellant/ Insurance Company is not liable to pay any compensation. Therefore, the Tribunal has erred in allowing the claim petition and directing the appellant to pay the compensation, while in such a situation the owner of the vehicle would be liable to pay compensation.
In support of his submissions learned counsel for the appellant has relied on the case of New India Assurance Co.Ltd. Versus Asha Rani and others;(2003) 2 SCC 223, New India Assurance Co.Ltd. Versus Vedwati and others; (2007) 9 SCC 486, Oriental Insurance Co.Ltd. Versus Brij Mohan and others; (2007) 3 SCC (Cri) 304 and Judgment and order dated 11.11.2014 rendered in the case of National Insurance Company Ltd. through its Regional Office Versus Smt.Leela Alias Vimla; First Appeal From Order Defective No.-799 of 2009.
On the other hand learned counsel for the respondent nos.4/1 and 4/2 i.e. owner of the vehicle, Shri Vimal Kishore Verma, vehemently opposed the submissions of the learned counsel for the appellant and submitted that as per findings recorded by the learned Tribunal on the basis of evidence adduced before it and material available on record the tractor was going on a pacca road. It was wrong to say that it was being used for soil work. It has further been submitted that the deceased Chhotey Lal was in service of Ram Kumar i.e. the owner of the vehicle and getting Rs.3,000/- per month, as such he was a representative of the owner and was entitled to travel on the tractor and he was travelling with the authorization of the owner on the date of occurrence. Therefore the submission is that there was no violation of any condition of the insurance policy. So the respondent no.4/1 and 4/2 who are legal heirs of respondent no.4; owner is not responsible for payment of the compensation. Accordingly the learned Tribunal, after considering the aforesaid aspect, has rightly concluded that Chhotey Lal was a representative of the owner and directed to the appellant to pay the compensation awarded by it.
Learned counsel for the respondent nos.2 and 3 Shri Kapil Dev Srivastava submitted that the driver Ramesh had called to the deceased and accordingly he went with him. On account of rash and negligent driving of the driver of tractor no.UP-31-C-1055, the tractor turned over as a result of which Chhotey Lal sustained injuries and died on the spot. Considering the pleadings and evidence adduced, the learned Tribunal has allowed the claim petition recording categorical finding. He further submitted that in any case if on account of alleged violation of the insurance policy, the appellant is not liable to pay, the claimants are entitled for the compensation as awarded by the Tribunal from the owner.
I have considered the submissions of the parties and perused the record.
On 23.09.1999 driver Ramesh son of Jagannath came to the house of Chhotey Lal and took him in his tractor. While they were going by the said tractor on pacca road, the driver after seeing another tractor no.UP-31-C-1055 started following the same and due to rash and negligent driving of tractor no.UP-31-C-1055 by its driver their tractor turned over, as a result of which Chhotey Lal sustained injuries and died on the spot. As per evidence adduced before the trial court Chhotey Lal was working at the Chhaki of Ram Kumar, owner of the tractor and his salary amounting to Rs.3200/- was due. The issue no.1 has been decided in favour of the claimants/respondents and it has been held by the learned Tribunal after considering the pleadings and evidence that the death of deceased Chhotey Lal was caused due to rash and negligent driving of vehicle no.UP-31-C-1055 (tractor) by its driver as a result of which the said vehicle turned and Chhotey Lal, who was sitting on it, died on the spot. I do not find any illegality or infirmity in the finding recorded by the Tribunal in this regard, which is based on the evidence adduced.
Learned counsel for the appellant has submitted that the vehicle was being used in contravention of the statutory provisions and terms and conditions of the policy so the appellant is not liable to pay the compensation. Therefore the question, falls for consideration, in the present case is whether the Insurance Company is liable to pay any compensation on account of death of Chhotey Lal, who was travelling in the Tractor or the owner of Tractor.
Section 2(44) of the Motor Vehicles Act, 1988 clearly provides that a Tractor means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller. The insurance was for death or bodily injury of a person by the accident by the use of motor vehicle, which in this case is tractor. There was no insurance of passenger.
Hon'ble Supreme Apex Court in the case of New India Assurance Co.Ltd. Versus Vedwati and others;(2007) 9 SCC 486 has held as under:-
"6. "4.This Court had occasion to deal with cases of passengers traveling in goods vehicles which met accident resulting in death of such person or bodily injury. Such cases belong to three categories i.e. (1) those covered by the old Act, (2) those covered by the Act; and (3) those covered by amendment of the Act in 1994 by the Motor Vehicles (Amendment) Act. 1994 (hereinafter referred to as the 'Amendment Act').
5. The present appeals belong to the second category.
6. In Satpal Singh's case (supra) this Court proceeded on the footing that provisions of Section 95(1) of the old Act are in pari materia with Section 147(1) of the Act as it stood prior to the amendment in 1994.
7. On a closer reading of the expressions "goods vehicle". "public service vehicle", "state carrier" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33)of the old Act with the corresponding provisions i.e. Section 2(14), 2(35) 2(40) and 2(47)of the Act, it is clear that there are conceptual differences. The provisions read as follows:
Old Act:
2 (8) "gods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers 2(25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab contract carriage, and stage carriage.
2(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:
2(33) "transport vehicle" means a public service vehicle or a goods vehicle:
The Act (New Act):
2(14) "goods carriage" any motor vehicle constructed or adapted for use solely for the carriage of goods or any motor vehicle not to constructed or adapted when used for the carriage of goods:
2(35) "public service vehicles" means any motor vehicles used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab a motorcab, contract and stage carriage:
2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for (SIC) or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey:
2(47) "transport vehicle" means a public services vehicle a goods carriage an educational institution bus or a private service vehicle:
(Underlined for emphasis)
8."Liability" as defined in Section 145(c) of the Act reads as follows:
'145. (c) "Liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140;'
9. Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 of the Act (sic) is to be (sic) with Section 96 of the old Act. Proviso to Section 147 of the Act reads as follows:
'Provided that a policy shall not be required
(i) to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injure sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act. 1993 (8 of 1923) in respect of the death of or bodily injury to, any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicles, or
(c) if it is a good carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
It is of significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the Act. The same reads as follows:
'(ii)except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.' 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".
10. 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 vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore.
11. Our view gets support from a recent decision of a three- Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. MANU/SC/1105/2002: AIR2003SC607 in which it has been held that Satpal Singh's case (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award."
This position was also highlighted in Oriental Insurance Co. Ltd. v.Devireddy Konda Reddy and Ors. MANU/SC/0046/2003: [2003]1SCR537. Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar and Ors.MANU/SC/0661/2003: AIR2003SC3093, in National Insurance Co. Ltd. v. Baljit Kaur and Ors. MANU/SC/0009/2004: AIR2004SC1340 and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors.MANU/SC/0184/2005: (2005)12SCC243, the view in Asha Rani's case (supra) was reiterated."
In the case of Oriental Insurance Co.Ltd. Versus Brij Mohan and others;(2007) 3 SCC (Cri) 304 the Apex Court has held that since the respondent therein was not the owner of the tractor and 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 in the case of New India Assurance Co.Ltd. Versus Asha Rani;(2003) 2 SCC 223.
Similar view has been expressed by the Supreme Court in National Insurance Company Vs. V.Cinnamma and others (2004) 3 TAC 577 (SC). In the said case the tractor and the trolley attached to it was used for transporting vegetables for sale in the market and not for agricultural purposes. It was held that the tractor was meant to be used for agricultural purposes. It cannot be used as a transport vehicle. The trailer or the trolley attached to the tractor is also required to be used for agricultural purposes unless registered otherwise.
In the case of Oriental Insurance Co.Ltd. Vs. Anil Kumar and others; (2013) 2 TAC 298, Punjab and Haryana High Court held that "for a death and injury to a passenger in a tractor, the Insurance Company could not be made liable, if, there exists no obligation under Section 147 of Motor Vehicles Act to cover the risk for a person who was travelling in a vehicle which was not fit to carry passengers. The issue whether the Insurance Company could still be made liable for the purpose of satisfying the claim allowing for a right of recovery against the owner and the driver has also been considered by this Court in United India Insurance Company Ltd. Vs. Ramji Lal and others8 (2010-4) 160 P.L.R. 436 (S.C.). The award rendered by the Tribunal making the Insurance Company, in such a situation would, therefore, required to be set aside and accordingly, set aside."
This Court relying on the several authorities of the Hon'ble Apex Court and this Court held in the case of Mohan Kushwaha & others Vs. Ghanshyam & another;2012 (3) TAC 299 (All.) as under:-
"The argument has no substance inasmuch as it is settled that a tractor is not a transport vehicle and can only be used for agricultural purposes. It can not carry passengers. it is equally settled that tractor and trolley are two different motor vehicle and have to be insured separately. The trolley in the present case was not insured. In (2007) 7 SCC 56 Oriental Insurance Co.Ltd. Vs. Brij Mohan and others the Supreme Court held that as the tractor/trolley was not insured in addition to the tractor and thetractor was not being used for agricultural purposes for which it was insured the claim of the labourer traveling in the trolley on being injured in an accident was not maintainable against the Insurance Company and the owneer of the vehicle was liable for the compensation. The aforesaid decision was followed by the Supreme Court in (2008) 7 SCC 425 United India Insurance Co.Ltd. Vs. Serjerao. It was held that liability regarding labourers traveling in trolleys is only upon the owner of the tractor/trolley and the Insurance Company is not liable to indemnify the loss.
In view of the aforesaid discussion the plea of the respondent-owner (4/1 and 4/2) cannot be accepted, that since the deceased was a representative of the owner so the insurance Company is liable to pay because the tractor is not a goods vehicle and it is rejected.
Having considered in the light of above discussion, I am of the considered view that the learned Tribunal has failed to consider the aforesaid aspect of the matter and wrongly and illegally directed the appellant to pay the amount of compensation awarded by it. Therefore, the appeal is liable to be allowed partly and the impugned judgment and award is liable to be modified to the extent that in place of the insurer i.e. the appellant, the owner i.e. respondent nos.4/1 and 4/2 shall be liable to satisfy the award.
Now the question arises how it can be done without recouse to the lengthy procedure. The ends of justice would suffice if the appellant is hereby directed to satisfy the awarded amount in favour of the claimants-respondents, if already not satisfied and the same shall be recovered by it from the owner of the vehicle i.e. respondent nos.4/1 and 4/2. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer as has been held by the Apex Court in the case of Oriental Insurance Co.Ltd. Versus Nanjappan and others;(2004) 13 SCC 224. The relevant paragraph 8 is reproduced as under:-
"8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur case4 that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was o dispute raised, to the respondent claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal disposed of in the aforesaid terms, with no order as to costs."
No other ground has been pressed by the parties.
In view of above the judgment and award dated 21.07.2003, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Lakhimpur Kheri in Motor Accident Claim Petition No.151 of 1999; Smt.Biddo Devi and others Vs. Ram Kumar and others, awarding an amount of Rs.1,84,500/- with 6% per annum interest thereon from the date of presentation of the petition is upheld and the direction to the opposite party no.4 i.e. the present appellant to pay the compensation awarded is modified to the extent that the Oriental Insurance Company Limited/appellant is not liable to pay the same and it is to be paid by the owner. According it is to be recovered from the owner of the tractor having registration no.UP-31-C-1055 and since the owner has died from his legal heirs i.e. opposite parties 4/1 and 4/2 jointly and severally. However, the said amount shall be paid by the appellant/Oriental Insurance Company Ltd. to the claimants/respondents within a period of two months from the date of this order, if not already paid or the remaining amount if any and the same shall be recovered by it from the owner as provided herein-above.
The appeal is partly allowed. The judgment and award dated 21.07.2003, passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Lakhimpur Kheri in Motor Accident Claim Petition No.151 of 1999; Smt.Biddo Devi and others Vs. Ram Kumar and others stands modified in aforesaid terms.
No order as to costs.
Office is directed to remit the amount, if any, deposited before this court to the Claims Tribunal concerned for compliance of the award.
Office is directed to send back the Lower Court Record forthwith.