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2006 DIGILAW 1173 (PAT)

Chandra Prakash Sah v. Jakir Hussain

2006-12-04

REKHA KUMARI

body2006
Judgment 1. This is an appeal against the order dated 20.2.2003 passed by the 1st Addl. District Judge cum Motor Vehicle Claims Tribunal, Katihar in Claim Case No. 19/ 2001 under which the appellant has been directed to pay interim compensation of Rs. 25,000.00 under sec. 140 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) to the claimant Jakir Hussain for injury sustained by him in motor vehicle accident caused by the tractor and trailer bearing registration No. BR 11-A/7628. 2. The appellant Chandra Prakash Sah is the owner of the offending vehicle. The claimant Jakir Hussain was the permanent labourer on a daily wages basis under the owner of the vehicle. One Amar Nath Singh had hired the vehicle for consideration and the vehicle loaded with 60 bags of paddy of the said hirer for being sold in Katihar market was heading towards Katihar, when on the way the driver asked the claimant, who was in the tractor, to move to the front portion to keep balance. The claimant sat on the bonate. The vehicle then was geared up and in that process the claimant fell down and received injury as a result of which two toes of left leg had to be imputed. 3. The vehicle on the relevant date was insured with the respondent United India Insurance Company Limited. The impugned order shows that the terms and conditions of the police included agriculture purpose and besides the act, liability of the driver special condition covered flood and earth quack. 4. The Tribunal found from the medical papers that there was permanent disablement of the claimant on account of motor vehicle accident and therefore, the claimant is entitled to get the above amount as interim compensation. It further held that though the vehicle was ensured and the liability of the owner and the insurer of the vehicle are co-extensive, as the vehicle was not being used for agriculture purpose and no passenger could be carried on the goods vehicle, there is violation of the terms and conditions of the policy and therefore, the Insurance Company would be liable to pay the compensation. The Tribunal, accordingly, directed the appellant to pay compensation. 5. The grievance of the appellant is that as the vehicle was insured the respondent Insurance Company was liable to pay compensation and not the appellant. 6. The Tribunal, accordingly, directed the appellant to pay compensation. 5. The grievance of the appellant is that as the vehicle was insured the respondent Insurance Company was liable to pay compensation and not the appellant. 6. Learned counsel for the appellant submitted that the violation of the terms and conditions of the policy is no ground to exonorate the insurer from liability to pay interim compensation. In support of his submission he has relied on the single Bench decision of this Court in the case of New India Assurance Company Ltd. vs. Mostt. Janki Devi, reported in 1999(1) PLJR 712 and the Division Bench decision of this Court in the case of Kanhai Ram & ors. vs. Sri Dharampal & ors., reported in 2001(3) PLJR 103 . 7. Learned counsel for the respondent Insurance Company, on the other hand, defended the order and submitted that even no fault liability, the insurer is not liable to pay interim compensation if it is found that under the policy of insurance, the insurer is not liable to pay compensation. In support of his submissions he has relied on the decision of the Supreme Court in the case of National Insurance Company Ltd. vs. Jethu Ram & ors., reported in (1999)9 SCC 62 . 8. He further contended that in view of sec. 147 of the Act carrying of passengers in a goods carriage is not contemplated under the Act and after the amendment of 1994 in the Act, the insurer is liable to pay compensation only in case of death or injury to owner of the goods or his authorised representative being carried in goods carriage and to the third party but in this case the injured was neither the owner of the goods nor the authorised representative and as he was being carried in the vehicle he was not a third party. Therefore, when there was no special contract, the insurer was not liable to pay compensation. In support of his submissions he relied on the decisions of the Supreme Court in the case of New India Assurance Company. Therefore, when there was no special contract, the insurer was not liable to pay compensation. In support of his submissions he relied on the decisions of the Supreme Court in the case of New India Assurance Company. Ltd. vs. Asha Rani & ors., reported in (2003)2 SCC 223 [: 2003(1) PLJR (SC)213], National Insurance Company Ltd. vs. Bommithi Subhayamma & ors., reported in (2005)12 SCC 243 , National Insurance Company Ltd. vs. Baljit Kaur & ors., reported in (2004)2 SCC 1 [: 2004(2) PLJR (SC)59] and National Insurance Company Ltd. vs. Chinnamma & ors., reported in 2005(1) BLJ 160 [: 2004(4) PLJR (SC)147]. 9. At the outset it may be mentioned that the goods carriage has been defined under sec. 2(14) of the Act and according to goods carriage means any motor vehicle contracted or adopted for use solely for the carriage of goods or any motor vehicle not so contracted or adopted when used for the carriage of the goods. Tractor has been defined in sec. 2(44) to mean a motor vehicle which is not itself constructed to carry any load (other than equipment use) for the purpose of propulsion, but excluding road roller Trailer has been defined in sec. 2(46) to mean "any vehicle other than a semi trailer and a side car, drawn or intended to be drawn by a motor vehicle". Therefore, though the tractor itself was not a goods carriage in this case but as the trailer was being used in it and was being carried loaded with bags of paddy for business purpose, the tractor/trailer in this case was a gods carriage. 10. In the case of Baljit Kaur (supra) the three Judges Bench of the Supreme Court has held that "by reason of 1994 amendment what was added is including owner of the goods or his authorised representative in the vehicle. The liability of the owner of the vehicle to insure it com-pulsorily, thus by reason of the aforesaid amendment included only the owner of the goods and his authorised representative covered in the vehicle besides the third parties." In the case of Asha Rani (supra) the Supreme Court held that the Insurance Company is not liable to payments of any compensation for death of a gratuitous passenger travelling in a goods vehicle. In other cases relied on by the learned counsel following the case of Asha Rani it has been held that the statutory liability of the insurer does not cover passengers carried in a goods vehicle. 11. Therefore, in view of the decisions it is settled that after the amendment of 1994 in the case of goods vehicle the statutory liability of the insurer extends only to the owner of the goods or his authorised representative or the third party. But in this case the injured does not come under any of the category and so the insurer is not liable to compensate him. 12. In the case of Mostt. Janki Devi (supra) a Bench of this Court indeed has held that the violation of the terms and conditions of the policy will not come in the way for the purpose of allowing ad interim compensation to be paid by the Insurance Company and in the case of Kanhai Ram (supra) a Division Bench of this Court has held that once an insurance policy is in force with regard to use of the motor vehicle at a public place covering liability against the third party risk, then the insurer is also liable to pay the interim compensation, but in view of the above decisions of the Apex Court, when the claimant was neither the owner of the goods nor he is authorised representative nor the third party, in the absence of any contract the insurer was not liable to pay compensation. So, if the Tribunal has directed the owner to pay compensation, I do not find any reasonable ground to reverse the order. 13. In the result, the appeal is dismissed, but in the circumstances of the case, without any costs. 14. It may also be mentioned here that no observation made in this order would be binding on the Tribunal in final disposal of the claim. 15. After the above order dictated in Court, learned counsel appearing for the claimant pressed his I.A. No. 4997/2004 and prayed for permitting him to withdraw the amount deposited in this Court by the appellant. 16. Since I have already arrived to the above finding that the owner is responsible for paying the interim compensation, the I.A. of the claimant is allowed and he is directed to collect the amount from the office.