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Madhya Pradesh High Court · body

2006 DIGILAW 20 (MP)

NATIONAL INSURANCE COMPANY LTD v. CHHOTELAL PYASI

2006-01-03

S.L.JAIN

body2006
Judgment ( 1. ) INVOKING the appellate jurisdiction of this Court under Section 173 of the motor Vehicles Act, 1988 (henceforth the act) the appellant-National insurance Company, Ltd. has filed this appeal challenging the validity, legality, propriety and correctness of the award dated 29-3-96 passed by Vth Additional motor Accidents Claims Tribunal, Rewa in Motor Accident Claim Case No. 11/95. ( 2. ) THE facts pithily narrated are that respondent No. 1, Chhotelal filed a petition under Section 166 of the Act for compensation of Rs. 4,30,000/-claiming himself to be the legal representative of deceased Santosh Kumar, being his father, who died in a motor accident occurred on 4-10-91, alleging that on 4-10-91 deceased Santosh Kumar, aged about 18 years, was going in tractor no. MKA-3929 along with Shankar Singh, the respondent No. 2, who was driving the tractor. When the tractor reached near the house of deceased, shankar Singh slowed down the tractor to facilitate getting down of the deceased. When the deceased was in the process of alighting from the tractor, shankar Singh moved the tractor fast as a result of which the deceased came under the trolley of the tractor. The trolley over run the deceased crushing him. The deceased sustained serious injuries and after sometime succumbed to his injuries. It is alleged that the offending tractor was owned by respondent No. 3, baldeo Singh and insured by the appellant. ( 3. ) THE claim petition was opposed by the driver and owner of the tractor stating that the alleged accident did not occur by their tractor and if at all, it occurred by their tractor, the appellant-insurance company was responsible for compensation as the tractor was insured with it. The appellant also refuted the claim sought for, stating that the offending tractor and trolley were insured for the agricultural purposes and by carrying passengers therein the condition of insurance policy was violated. Because of this breach the insurance company is not liable for compensation. ( 4. ) THE Claims Tribunal recorded a finding that the accident occurred due to rash and negligent driving of the offending tractor which was being driven by Shankar Singh and was owned by respondent No. 3, Baldev Singh and was insured with the appellant. The Tribunal also recorded a finding that the age of the deceased on the date of accident was 18 years. The Tribunal also recorded a finding that the age of the deceased on the date of accident was 18 years. The dependency of the claimant was assessed to Rs. 500/- per month. On the basis of this assessment a compensation of Rs. 55,000/- was awarded to the claimant. It was also found that the vehicle was insured with the appellant and the compensation amount was made payable by the appellant-insurance company alone. ( 5. ) I have heard Shri S. K. Rao, senior Counsel with Shri V. Pandey, advocate, appearing for appellant and Shri K. P. Mishra, senior Counsel with shri Rajneesh Tripathi, Advocate, appearing for respondent No. 1 and perused the record of the case. None appeared for respondents No. 2 and 3. ( 6. ) LEARNED Senior Counsel, appearing for the appellant, vehemently submitted that there is ample material on record to come to a finding that the tractor and trolley in question were insured for agricultural purposes only. It could not have been used for the purpose of carrying passengers gratuitously or otherwise. In the claim petition it was stated that the deceased was sitting in the tractor as a passenger. Therefore, the insurance company is not liable. ( 7. ) THE contention appears to be acceptable. Lakhan Kumar Sharma (AW-2) has stated that Santosh Kumar was sitting on the tractor. He was coming in the tractor from his field. The accident occurred when Santosh Kumar was alighting the tractor. He was over run by the trolley of the tractor. It is not the case of the claimant that the deceased was going in the tractor as a labour. It is also not his case that the deceased was travelling in the vehicle as incidental to the agricultural operation. Though Shesh Mani Sharma (AW-3) has stated that the deceased was going as a pedestrian and not as a passenger of the tractor involved in the accident, but in view of the evidence of other witnesses and the averment made in the claim petition it cannot be said that the deceased was a pedestrian and not a passenger of the tractor. ( 8. ) THE tractor was insured for only agricultural purposes. ( 8. ) THE tractor was insured for only agricultural purposes. If the death of a gratuitous passenger not travelling as a labour or incidental to the agricultural operation, is caused by the offending tractor, because of the violation of terms of the agreement of the insurance policy the insurance company cannot be held to be liable for compensation. The Claims Tribunal held the insurance company liable on the ground that in view of the amendment incorporated in Section 147 (1) (b) (i) by Amendment Act No. 54 of 1994 which came into force w. e. f. 14-11-94, the policy of insurance covered the liability in respect of the death of or bodily injury to any person, including the owner of the goods or his authorised representative carried in the vehicle. But it is not the case of the claimant that the deceased was travelling in the tractor as owner of the goods carried in the vehicle, therefore, the said amendment does not help the claimant. There is no place for doubt that the deceased was travelling as a passenger, therefore, because of the violation of the insurance policy the appellant-insurance company is not liable. It is open for the claimant to recover whole or any part of the compensation from the driver and owner of the tractor, but the insurance company cannot be held liable. ( 9. ) SHRI Mishra, learned Senior Counsel, appearing for respondent no. 1, submitted that even in breach of terms of the insurance policy, the insurance company is liable to pay the compensation to the claimant in terms of section 149 of the Act though it shall be entitled to recover the amount from the owner. ( 10. ) THIS contention also appears to be acceptable. In cases where the insurance company is not held liable because of the breach of conditions of insurance policy, the insurance company is obliged to pay the amount of compensation to the claimant and recover the same from the owner. ( 11. ) THE appeal is, therefore, allowed to the extent that in view of the violation of the terms of the insurance policy the insurance company is not liable for compensation but under Section 149 of the Act the amount of compensation. ( 11. ) THE appeal is, therefore, allowed to the extent that in view of the violation of the terms of the insurance policy the insurance company is not liable for compensation but under Section 149 of the Act the amount of compensation. shall be payable by the insurance company to the claimant and the insurance company shall be entitled to recover the same from the owner of the vehicle involved in the case. Costs as incurred. Misc. Appeal allowed.