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2004 DIGILAW 807 (MP)

CHANDAN SINGH RAGHUVANSHI v. RAMESHWARI BAI

2004-10-01

CHANDRESH BHUSHAN, S.S.JHA

body2004
S. S. JHA, J. ( 1 ) ALL these appeals are disposed of by this common judgment as common question is involved in all these appeals. Misc. Appeal No. 291 of 1992 is preferred by the owner and driver of the vehicle whereas Misc. Appeal No. 16 of 1993 is preferred by insurance company arising out of the award dated 15. 9. 1992 passed by the Motor Accidents Claims tribunal, Guna in Claim Case No. 5 of 1991. ( 2 ) QUESTION involved in these appeals is whether in the facts and circumstances of the case, Claims Tribunal was justified in exonerating the insurance company from its liability to indemnify the claimant and owner and driver of the vehicle. ( 3 ) FACTS of the case are that on 9. 12. 90 at about 12 in the noon, Chandan Singh, owner and driver of the tractor No. MKH 4867, was travelling on his tractor from village Dhamnar to Guna. The tractor was attached with a trolley. Deceased Rameshchandra was permitted to sit in the trolley of the tractor for the purpose of agriculture by Chandan Singh. It is alleged that the tractor was driven in a rash and negligent manner by Chandan Singh. He could not control the tractor and the tractor dashed against a tree and trolley overturned. Deceased Rameshchandra was thrown from the trolley and was crushed by the trolley. Deceased sustained injuries and died. ( 4 ) CLAIMS Tribunal recorded a finding that the tractor was driven in a rash and negligent manner which resulted into the accident causing death of Rameshchandra. Claims Tribunal further held that claimants are entitled to receive compensation from the owner and driver of the tractor and absolved the insurance company. Finding is recorded that the tractor was driven in violation of the terms of the insurance policy and the insurance company is not liable to pay the compensation. ( 5 ) THE insurance company has filed the appeal challenging the portion of the award whereby the Tribunal has ordered that the amount of interim compensation deposited by the insurance company shall be adjusted towards the amount of compensation and no orders have been passed for refund of the amount of interim compensation to the insurance company. Insurance company contended that the insurance company is entitled for refund of amount of Rs. 25,000 deposited by it towards 'no fault liability'. Insurance company contended that the insurance company is entitled for refund of amount of Rs. 25,000 deposited by it towards 'no fault liability'. ( 6 ) APPELLANT in Misc. Appeal No. 291 of 1992 has denied the claim and submitted that the deceased was not travelling in the tractor. Deceased without informing the driver of the tractor climbed the trolley and sat in the trolley. There was no permission by the driver of the tractor to sit in the trolley. Driver of the vehicle is not responsible for the accident. Accident has not occurred on account of negligence but the accident occurred due to breaking of ball bearing and there was no fault on the part of the driver. ( 7 ) WE have considered the evidence and material on record. Chandan Singh, owner and driver of the vehicle, has not entered the witness-box to prove that the accident occurred on account of mechanical defect as the ball bearing were broken. In the absence of proof by the appellant Chandan singh, the finding of the Claims Tribunal is that the accident occurred on account of mechanical failure is not proved. Even otherwise, mechanical defect in the vehicle also amounts to negligence and under the theory of res ipsa loquitur, it is the duty of the owner and driver of the vehicle to maintain the vehicle properly and the vehicle should be roadworthy. If the vehicle is not maintained properly, then also it is a negligence on the part of the owner and driver of the vehicle. Therefore, the finding recorded by the Claims Tribunal is affirmed that the vehicle was driven in a rash and negligent manner. ( 8 ) THERE is no challenge to the quantum of compensation by the claimants. ( 9 ) THE counsel for the appellant owner and driver of the vehicle has submitted that the insurance company has wrongly been absolved from indemnifying the insured. However, as regards compensation, the claims Tribunal has recorded a finding that income of the deceased was Rs. 1,400 per month and his yearly income was determined at Rs. 16,800. After deducting 1/3rd, dependency is determined at Rs. 11,160 per annum and considering 32 years as the age of deceased multiplier of 15 has been applied and the compensation is determined at Rs. 1,67,400 and it has been held to be the correct amount of compensation. 1,400 per month and his yearly income was determined at Rs. 16,800. After deducting 1/3rd, dependency is determined at Rs. 11,160 per annum and considering 32 years as the age of deceased multiplier of 15 has been applied and the compensation is determined at Rs. 1,67,400 and it has been held to be the correct amount of compensation. However, compensation for other heads such as loss to estate, funeral expenses, loss of consortium, etc. has not been paid. Non-payment of compensation on separate heads has not been challenged by claimants. However, we are of the opinion that claimants are entitled for compensation for other heads. ( 10 ) CLAIMS Tribunal has accepted the contention of the insurance company that the insurance company is not liable to pay the compensation. In this case, the tractor was insured purely for the agricultural purpose which is apparent from Exh. D2 and exh. D2a schedule of the policy. Learned Tribunal has relied upon the judgment in the case of Shivlal v. Rukmabai, 1987 acj 341 (MP), wherein it is held that the insurance company is not liable to pay the compensation for the passenger travelling in a tractor and no person can be carried as a passenger in a tractor or trailer attached to it. The deceased Rameshchandra was travelling as a passenger, therefore, though there is evidence by Kameshwar Giri, AW 2, that no charges for travelling as a passenger were paid, all the same deceased was not travelling for the agricultural purpose. It is not the case of the claimants that the deceased was a labourer engaged by the tractor owner and for that purpose he was travelling as agriculture labourer in the trailer. Counsel for the appellant owner has invited attention of the court to the insurance policy, Exh. D1. The insurance company has accepted the Act liability. Premium was paid for the trolley also and driver was also insured and extra premium for the driver was paid. The counsel for the appellant owner submitted that since the trolley was also insured, therefore, the deceased who was travelling in the trolley and being the third party, the insurance company is liable to cover the risk of third party. He invited attention to Section II of the insurance policy wherein the insurance company has accepted the liability to third parties. He invited attention to Section II of the insurance policy wherein the insurance company has accepted the liability to third parties. In Section II - Liability to Third parties, it is clearly mentioned that death or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the motor vehicle, damage to the property caused by the use (including the loading and/or unloading) of the motor vehicle. Counsel for the appellant owner, therefore, submitted that for the injury to any person arising out of the use of the motor vehicle (offending vehicle) the insurance company is liable to pay the compensation. In support of this contention he referred to the judgment in the case of Nagashetty v. United India Insurance Co. Ltd. , 2001 ACJ 1441 (SC) and submitted that once the trolley attached to the tractor was insured, insurance company is liable to pay compensation. In that case, when additional premium was accepted by the insurance company for the trailer, therefore, insurance policy covers not just the tractor but also a trailer attached to the tractor. However, question involved in that case was whether the driver was having valid licence and the question was decided that the driver was having learner driving licence. In that case, according to the policy, it was mentioned that the tractor can be used for carriage of goods and, therefore, it was held that in the cases where policy is for carriage of goods, insurance company is liable. This was the ratio laid down in the case of Nagashetty (supra ). However, in the present case, tractor was insured only for agricultural purpose, therefore, this judgment will not be applicable to the present case. ( 11 ) SIMILARLY in the case of Dr. T. V. Jose v. Chacko P. M. , 2001 ACJ 2059 (SC), question regarding death of a gratuitous passenger in a car accident and any person as third party was considered and it has been held that third party does not cover the liability of gratuitous passengers who are carried for hire or reward. This case relates to a car accident and in the car accident one of the passengers suffered serious injuries and later he succumbed to the injuries. The claim was filed. This case relates to a car accident and in the car accident one of the passengers suffered serious injuries and later he succumbed to the injuries. The claim was filed. Supreme court held that under the policy, gratuitous passenger is not covered and the insurance company is not liable to indemnify the gratuitous passenger. In para 19 of the judgment it is held that complete policy is not on record. First page of the policy was relating to third party risk. The terms and conditions governing this policy were not on record. The terms and conditions of a comprehensive policy relating to private cars were shown to the court but the court held that this will not apply to the policy and in the absence of terms and conditions governing the policy, it will not be possible to accept the contention that the insurance policy also covers the liability of the occupant of the car. Thus, in this judgment, the policy was considered and since terms and conditions of policy were not on record, therefore, the court has refused to draw any presumption on the terms and conditions of the policy. ( 12 ) IN the case of Ramashray Singh v. New India Assurance Co. Ltd. , 2003 ACJ 1550 (SC), wherein the words 'any person' or 'passenger' occurring in section 147 of motor Vehicles Act has been considered and it is held that these words are of wide amplitude but they do not cover employees other than those mentioned in proviso to sub-section (b ). Plea that the policy being comprehensive one covers the risk has been negatived. Even in the insurance policy mentioning of the word cleaner while describing the seating capacity of the vehicle does not mean that the cleaner/khalasi was a passenger in the vehicle. It is further held that under the comprehensive policy also does not cover all third party risk but only covers person or classes of persons specified in policy. Comprehensive policy merely means that loss sustained by such person/persons will be payable up to the insured amount irrespective of the actual loss suffered. ( 13 ) FULL Bench of this court in the case of Jugal Kishore v. Ramlesh Devi, 2004 acj 297 (MP), has held that the third party includes the party other than contracting parties to the insurance policy. ( 13 ) FULL Bench of this court in the case of Jugal Kishore v. Ramlesh Devi, 2004 acj 297 (MP), has held that the third party includes the party other than contracting parties to the insurance policy. However, question regarding liability to the third party has not been considered in terms of the insurance policy in this judgment. ( 14 ) THE counsel for the claimants has strongly relied upon the single Bench judgment of this court in the case of Gyaso Bai v. Mahendra Singh, 1999 ACJ 1594 (MP)and contended that the trolley is permitted under the M. P. Motor Vehicles Rules and it is permitted to carry 20 passengers. While considering the notification authorising the carrying of persons at the time of fair (meld) under the rules made thereunder, this court has held that the notification and the rules cannot be used for avoiding any action under the Motor Vehicles Act for carrying persons in trolley but the courts were justified in refusing to award claim against the insurance company. ( 15 ) IN the case of National Insurance co. Ltd. v. Jethu Ram, 1998 ACJ 921 (SC), apex Court has considered the question of liability of the insurance company. In that case, the insurance company has paid to the claimant the amount awarded under 'no fault liability'. In final adjudication, insurance company was held not liable to pay the compensation and owner of the offending vehicle was held liable. It was held that the insurance company is liable to recover the amount paid under the 'no fault liability' from the owner. ( 16 ) IN the case of Kaushnuma Begum v. New India Assurance Co. Ltd. , 2001 ACJ 428 (SC), Supreme Court has considered the question of negligence on account of bursting of front tyre of the jeep while in motion; vehicle became unbalanced and turned turtle causing the death of a person walking on the road. The Tribunal held that there was neither rashness nor negligence in driving the vehicle, hence, the driver has no liability and as such the owner has no vicarious liability to pay the compensation. Tribunal dismissed the claim application but awarded compensation under 'no fault liability'. Order of Tribunal was upheld by the High Court. The Tribunal held that there was neither rashness nor negligence in driving the vehicle, hence, the driver has no liability and as such the owner has no vicarious liability to pay the compensation. Tribunal dismissed the claim application but awarded compensation under 'no fault liability'. Order of Tribunal was upheld by the High Court. Question was considered by the Apex Court and relying upon the ratio laid down in the case of Rylands v. Fletcher, (1861-73) All ER 1, Apex Court has observed in the case of M. C. Mehta v. Union of India, 1987 ACJ 386 (SC) that:"we have to evolve new principles and lay down the new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. "in para 19 it is held that compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of Motor Vehicles act permit that compensation paid under 'no fault liability' can be deducted from the final amount awarded by Tribunal and the victim in an accident which occurred while the motor vehicle was in use is entitled to get compensation from the Tribunal and it was directed that the claimants are entitled for compensation. ( 17 ) IN case of Pushpabai Purshottam udeshi v. Ranjit Ginning and Pressing co. , 1977 ACJ 343 (SC), principle of res ipsa loquitur was considered. In this case, car went to the right extreme of the road and dashed against a tree with violent force, as a result occupant of the car died. There was no attempt on the part of the respondents to show that the accident did not take place due to negligence. It was held that the accident speaks of itself or tells its own story. It is further held that if the driver had used proper care in the ordinary course of things the car could not have gone to the right extreme of the road, dashed against a tree and moved it a few inches away. It was held that the accident speaks of itself or tells its own story. It is further held that if the driver had used proper care in the ordinary course of things the car could not have gone to the right extreme of the road, dashed against a tree and moved it a few inches away. Even in the cases of mechanical breakdowns, it is held that the owner is negligent as the respondent failed to discharge the burden that the vehicle was checked and it was in a roadworthy condition. ( 18 ) CONSIDERING the overall import of the aforesaid judgments, the policy filed by the insurance company itself shows that tractor has been insured by the insurance company and it covers the insurance of the trolley attached to the tractor. Vehicle is insured for only Act liability. ( 19 ) THUS, the admitted position is that the passenger was not carried for hire or reward as he has not paid the fare. Since the vehicle is not meant for carrying goods, therefore, unless the vehicle was insured for carrying goods, contention of claimants that the deceased was carrying two bags of wheat itself shows that the deceased was permitted in the tractor along with his goods and that is against the policy of the insurance. In the circumstances, the insurance company is not liable to indemnify the claim of the owner. This view is taken in the cases of New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC) and oriental Insurance Co. Ltd. v. Devireddy konda Reddy, 2003 ACJ 468 (SC), wherein it was held that the insurance company is not liable for the passengers travelling gratuitously or unauthorisedly in a goods vehicle. ( 20 ) SINCE the passenger is not permitted to travel in the tractor and the risk of the passenger is not covered by the insurance policy, therefore as discussed above, the insurance company is not liable to indemnify the owner and Claims Tribunal was fully justified in not awarding compensation against the insurance company. ( 21 ) AS regards the appellant insurance company in Misc. Appeal No. 16 of 1993 is concerned, the amount paid towards 'no fault liability' the insurance company will be entitled to recover the same from the owner of the vehicle. ( 21 ) AS regards the appellant insurance company in Misc. Appeal No. 16 of 1993 is concerned, the amount paid towards 'no fault liability' the insurance company will be entitled to recover the same from the owner of the vehicle. Award is modified to that effect and it is directed that the insurance company is entitled to recover the said amount from the owner of the vehicle and shall also be entitled for interest at the rate of six per cent per annum from the date of deposit till its recovery from the owner of the said amount of rs. 25,000. ( 22 ) IN the result, Misc. Appeal No. 291 of 1992 fails and is dismissed and Misc. Appeal No. 16 of 1993 succeeds and is allowed. In the facts and circumstances of the case, there shall be no order as to costs. Orders accordingly. .