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Madhya Pradesh High Court · body

2007 DIGILAW 155 (MP)

New India Assurance Co. Ltd. v. Triveni Bai

2007-02-09

RAJENDRA MENON

body2007
Judgment ( 1. ) AS both appeals arise out of a common award, they are being disposed of by this common order. ( 2. ) CLAIMANTS in these appeals are wife, parents and children of deceased Lakhan dhakad and have filed the claim petition seeking compensation for death of Lakhan dhakad. It is stated that Lakhan Dhakad was a resident of Gola Pahadi, Lashkar, gwalior. He was staying in village Gaajigarh and used to purchase agriculture produce from the agriculturists of the village and take them to mandis at Shivpuri and other places and used to earn his living by selling these agriculture produce. It is the case of the claimants that in this manner, lakhan Dhakad used to earn Rs. 50,000 per year and they were dependent upon him. On 5. 1. 2002, Lakhan Dhakad went from his village to sell groundnut in Berad mandi and for the said purpose, he went in trolley No. MP 33-H 1428 which was owned by respondent No. 4, Ramdas and insured with New India Assurance Co. Ltd. , appellant in M. A. No. 333 of 2003. The said trolley was pulled by tractor No. MP 33-H 0900 driven by Kallu, respondent No. 8, owned by respondent No. 9 in m. A. No. 333 of 2003 and insured with oriental Insurance Co. Ltd. , appellant in m. A. No. 353 of 2003. It is stated that along with Lakhan Dhakad, various other persons were travelling in the trolley with their agriculture produce and goods and when the tractor reached a place called nahargarh, it turned turtle as it was driven rashly and negligently and Lakhan Dhakad came under the trolley and died because of the said accident. Apart from Lakhan dhakad, another person, namely, one Bali ozha was also affected because of the accident. On the ground that the claimants are entitled to compensation, the claim petition was filed and after evaluating the evidence and the material that has come on record, a sum of Rs. 4,18,000 has been awarded as compensation. It is also held that the appellants in both these appeals are jointly and severally responsible for paying the compensation and as the tractor and trolley were insured separately with the respondent Nos. 3 and 5 in the claim petition (the present appellants), they have been directed to pay compensation at the rate of 50 per cent each. It is also held that the appellants in both these appeals are jointly and severally responsible for paying the compensation and as the tractor and trolley were insured separately with the respondent Nos. 3 and 5 in the claim petition (the present appellants), they have been directed to pay compensation at the rate of 50 per cent each. Being aggrieved by the award passed, both the insurance companies have filed these appeals, i. e. , m. A. No. 333 of 2003 is filed by New india Assurance Co. Ltd. who have insured the trolley in question bearing No. MP 33-H 1428 and M. A. No. 353 of 2003 is filed by Oriental Insurance Co. Ltd. who have insured the tractor in question, i. e. , No. MP 33-H 0900. In the appeal filed by Oriental insurance Co. Ltd. , i. e. , M. A. No. 353 of 2003. Mr. R. V. Sharma, learned counsel for appellant argued that as the tractor was insured only for agricultural purpose under the Kissan Package Policy and as the tractor was used for carrying passengers and goods after payment of hire and reward, insurer of the tractor was not liable to pay any compensation. Mr. R. V. Sharma further argued that from the evidence that has come on record, it is seen that the deceased was travelling in the trolley, the insurer of the tractor need not pay any compensation. Taking me through the statements of the witnesses and the appellant and referring to various judgments, it was emphasised that in holding the insurance company liable to pay compensation, the learned Tribunal has committed serious error and, therefore, the award calls for interference in this appeal. Mr. Sharma tried to emphasise that the finding recorded by the Tribunal is a perverse finding and as the tractor was used for the purpose other than agricultural purpose, Oriental Insurance Co. Ltd. is not liable to pay the compensation as breach of policy, Exh. D6 is proved. ( 3. ) APART from adopting the arguments made by Mr. R. V. Sharma, Mr. B. N. Malhotra, learned counsel for the appellant in m. A. No. 333 of 2003 argued that as the accident was a result of negligence on the part of the driver of the tractor and as no negligence of the trolley is proved, insurer of the trolley cannot be held liable to pay any compensation. R. V. Sharma, Mr. B. N. Malhotra, learned counsel for the appellant in m. A. No. 333 of 2003 argued that as the accident was a result of negligence on the part of the driver of the tractor and as no negligence of the trolley is proved, insurer of the trolley cannot be held liable to pay any compensation. It was emphasised by him that the trolley is always pulled by the tractor and as the accident took place because of the negligence of the tractor, the appellant insurance company who have insured the trolley cannot be held liable to any payment of compensation. Accordingly, mr. Malhotra seeks exoneration from the payment of liability. ( 4. ) REFUTING the aforesaid contention, mr. N. D. Singhal learned counsel for the claimants argued that as the tractor was used for transportation of agriculture produce, i. e. , groundnut, there is no violation of the terms and conditions of the insurance policy. It is further argued by him that the trolley can be used for transporting agriculture produce and owner of the goods can travel in the trolley. In such eventuality, mr. N. D. Singhal argued that there is no breach of the terms and conditions of the policy and the learned Tribunal has not committed any error in holding the insurance company liable to pay the compensation. Pointing out that when a trolley is attached to a tractor, it becomes a goods vehicle and in a goods vehicle if the owner is travelling along with the goods, the insurance company cannot be absolved of its liability, Mr. Singhal prays for dismissal of the appeals. It was further pointed by him that even if for some reason this court finds breach of the policy conditions, insurance companies should be held liable to pay the compensation first and thereafter they can recover it from the owners of the vehicle. In support of his contention, he has invited my attention to various judgments and emphasised that in cases like the present one, a pragmatic and justice oriented view should be taken and, therefore, he not only seeks for dismissal of the appeals but also submits that in the facts and circumstances of the case, the amount of compensation awarded being on the lower side by filing a cross-objection, he prays for the enhancement of compensation. ( 5. ) MR. ( 5. ) MR. H. K. Shukla, learned counsel for the owners of tractor and trolley has placed heavy reliance on a judgment of the Apex court in the case of B. V. Nagaraju v. Oriental Insurance Co. Ltd. , 1996 ACJ 1178 (SC), for the proposition that in the facts and circumstances of the case, no liability can be imposed upon the owner of the tractor and trolley and he prays for dismissal of the appeals. ( 6. ) IN rebuttal, Mr. B. N. Malhotra and mr. R. V. Sharma have argued that once breach of policy conditions is established, the liability cannot be fastened on the insurance companies and the question of insurance companies paying the amount and then recovery of the same does not arise in the peculiar facts and circumstances of the present case. ( 7. ) I have heard learned counsel for the parties at length and perused the record. ( 8. ) AS far as the facts with regard to accident, use of the tractor, trolley and the insurance of the same by the appellants are concerned, all these facts are not in dispute. ( 9. ) IN support of the claim made by the claimants, Amritlal, father of the deceased was examined as PW 1. Apart from him, akbar, PW 2, eyewitness to the accident and two more witnesses, Shyam Lal, pw3 and Nandlal, PW 4 are examined to establish the fact with regard to residence of the claimants and the jurisdiction of the tribunal. On behalf of the respondents, kallu driver of the tractor is examined. Shrinivas, owner of the tractor is examined and a supporting witness, Mathura Prasad is examined on behalf of the owner of the tractor. On behalf of New India Assurance co. Ltd. , the appellant in M. A. No. 333 of 2003, an official, Lalit Kishore Gupta is examined and on behalf of Oriental Insurance Co. Ltd. , appellant in M. A. No. 353 of 2003, an official, Vimalchand Dholkar is examined. ( 10. ) EXH. P1 is the first information report, Exh. P2, is details of the crime. Exh. P3 is post-mortem report, Exh. P4 is seizure memo prepared on the spot of the accident. Exhs. P5 and P6 are the documents giving the tractor and trolley on supardgi to the respective owners. Exh. P7 is the final report and Exhs. ( 10. ) EXH. P1 is the first information report, Exh. P2, is details of the crime. Exh. P3 is post-mortem report, Exh. P4 is seizure memo prepared on the spot of the accident. Exhs. P5 and P6 are the documents giving the tractor and trolley on supardgi to the respective owners. Exh. P7 is the final report and Exhs. D1 to D4 are various certificates issued by the Revenue inspector, Sarpanch and Headmaster of the school with regard to residence and working of the deceased Lakhan Dhakad and his family members. Exh. D5 is the photocopy of electoral rolls, Exh. D6 is kissan Package Policy of tractor by oriental Insurance Co. Ltd. and Exh. D7 is a policy of the trolley issued by New India assurance Co. Ltd. ( 11. ) THE first question that requires consideration in this appeal would be as to whether the tractor and trolley were being used for any other purpose than for the agricultural purpose for which they were insured with the insurance companies, appellants in both the appeals. ( 12. ) FROM the statements of witnesses, it is clear that the deceased Lakhan Dhakad was purchasing agriculture produce in the village from the various agriculturists and thereafter he was taking it to mandis in shivpuri, Gwalior, Bitharwar and other places. According to the statement given by Amritlal, PW 1, in this manner Lakhan dhakad was earning Rs. 200 per day. On the date of the accident, this witness states that Lakhan Dhakad was carrying groundnut in the trolley for selling in the Behad mandi and he left his house at about 10 in the morning. Even though this witness makes a general statement that for using the tractor and trolley, his son was making some payment but he is not a witness for payment being made by his son either to the driver of the vehicle, i. e. , tractor, Kallu or owner of the tractor or owner of the trolley on the date of the accident. There is no evidence available on record to show that on the date of the accident, Lakhan dhakad had paid any fare or amount to any of the persons for transportation of the groundnut to the mandi and on the contrary statement of Kallu, driver of the tractor indicates that no fare was collected from any person. There is no evidence available on record to show that on the date of the accident, Lakhan dhakad had paid any fare or amount to any of the persons for transportation of the groundnut to the mandi and on the contrary statement of Kallu, driver of the tractor indicates that no fare was collected from any person. Insurance companies except for giving statements of their officers, have not given cogent reliable evidence to show that the tractor or trolley was used for commercial purpose or that Lakhan Dhakad had hired the tractor and trolley for going to mandi for selling groundnut. On the contrary, Akbar, PW 2, eyewitness to the accident admits that in the trolley about three or four persons were sitting and the trolley was filled with various agriculture produce including groundnut. In the back drop of the facts that have come on record, the question is as to whether the tractor or trolley was being used for the agricultural purpose or for any other purpose. ( 13. ) EVEN though, various judgments with regard to liability of the insurance companies and the question of recovery of the amount from the owners after payment by the insurance companies were advanced by the learned counsel for the parties, I am of the considered view that the question involved in these appeals stand concluded by the following two judgments of this court and it is not necessary to go into various judgments cited and other questions raised by learned counsel for the parties during the course of arguments. These judgments are Malkibai v. Badriprasad, 1996 ACJ 38 (MP) and Poonam Singh v. Kamla, 1996 acj 398 (MP ). While considering the question as to what is agricultural purpose, a Bench of this court in the case of malkibai (supra) has held that carrying straw load by a trolley of a tractor even on hire would come within the purview of agricultural purpose. Thereafter, in the case of Poonam Singh (supra), the import of the words agricultural purpose is considered by a learned Judge in the following terms: " (11) The agricultural purpose would not only mean the cultivation of the land and sowing of seeds but it includes harvesting, taking of the crop to threshing ground, then to the godown and to the mandi for the purpose of sale of the agricultural produce. (12) If an owner of the motor tractor carries the agricultural produce to the market for the purpose of sale, it cannot be said that he is using the vehicle for commercial purpose as the sale of agricultural goods or products is an essential part of agricultural operations. (13) It is a matter of common experience that agricultural produce is taken to mandi or to the market for the purpose of wholesale or there may be a contract between the producer and the purchaser in wholesale that the producer of the agricultural goods may supply it to the person on token. This all will be deemed to be used for agricultural purpose. (14) However, if the tractor and trolley is being used for carrying the load of somebody else other than an agriculturist, may be of businessman, for carrying to a particular destination that may be taken to be a use for commercial purpose. (15) It may also be observed here that if agriculturist owns the tractor he can hire it and if the tractor has been hired for agricultural purpose, the same principle of carrying the agricultural produce to the threshing ground, to the godown, to the mandi or to the place of the purchaser would apply in such cases also. In the opinion of this court since the deceased Khurpia had purchased the bananas from the agriculturist, owner of the tractor and it was at the instance of such purchaser in wholesale that the bananas were being taken to the destination as per conditions of purchase by Khurpia and, therefore, it will be deemed that the tractor was being used for agricultural purpose. (16) Since deceased Khurpia was the purchaser of bananas and the owner of bananas purchased and, therefore, he had a right to go along with his goods and if he had occupied a seat in the trolley or the tractor for the purpose of carrying agricultural produce to the destination, responsibility ought to have been fastened on insurance company for making good the loss for the death of such purchaser of agricultural produce. " ( 14. ) RECENTLY, a Division Bench of this court had an occasion to consider the question of liability of an insurance company in similar circumstances in the case of jitendra v. Bhai Ram, 2006 ACJ 1217 (MP), as relied upon by Mr. N. D. Singhal, learned counsel for the claimants. " ( 14. ) RECENTLY, a Division Bench of this court had an occasion to consider the question of liability of an insurance company in similar circumstances in the case of jitendra v. Bhai Ram, 2006 ACJ 1217 (MP), as relied upon by Mr. N. D. Singhal, learned counsel for the claimants. In that case also certain agriculture produces were being carried in the trolley from village saiyyedpur to Bhikangaon, Krishi Upaj mandi and after analysing the facts of the case, it was observed in para 13 as under: ". . . There is absolutely no evidence on record to show that the vehicle was used for hire or reward. It was carrying agriculture produce of the agriculturist, not of the businessman. In the absence of evidence that the tractor was hired or used for reward, we find that it cannot be said that it was used for the commercial purpose at the time of accident. It is not uncommon for the agriculturist to carry the agriculture produce to Krishi upaj Mandi. Section 147 (1) (b) (i)covers the risk in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. . . " ( 15. ) KEEPING in view the principle laid down in the cases referred to hereinabove and analysing the facts and circumstances of the present case, it is clear that in the present case, the tractor was being used for transporting groundnut, an agriculture produce from the village to mandi at Behad and Lakhan Dhakad was travelling in the trolley as owner of the goods and it is settled principle of law that even the owner of the goods is entitled to travel in a goods vehicle along with his goods, therefore, the argument advanced on behalf of the insurance companies cannot be accepted. ( 16. ( 16. ) IN the present case, it is to be held that the vehicle in question, i. e. , tractor and trolley were being used for agricultural purpose and even if as an alternate it is assumed that it was not used for agricultural purpose then also, the tractor and trolley being a goods vehicle as held by this court in the case of Poonam Singh, 1996 ACJ 398 (MP) and Jitendra, 2006 acj 1217 (MP), was being used for carrying goods and the owner was travelling along with his goods and, therefore, the insurance company would be liable. ( 17. ) EVEN though, Mr. B. N. Malhotra, learned counsel for the insurance company, appellant in M. A. No. 333 of 2003 tried to point out that Lakhan Dhakad was travelling in the trolley and, therefore, the appellant in M. A. No. 333 of 2003 is not liable to pay compensation, I am afraid, the aforesaid contention cannot be accepted. ( 18. ) NOW the only question would be as to whether New India Assurance Co. Ltd. , insurer of the trolley is liable to be exonerated as the accident had taken place because of the negligence of the driver of the tractor in M. A. No. 353 of 2003. Even though, the tractor and trolley are insured separately and are owned by two different persons but the fact remains that tractor and trolley were being used for transporting agriculture produce to the mandi. Both the owners of the tractor and trolley would be deemed to have permitted use of the same on the date of the accident. The tractor and trolley cannot be treated as two different and separate vehicles. The tractor and trolley together constitute a goods vehicle and merely because they are separately registered and insured, it cannot be construed that they are two separate vehicles. Once the accident had taken place and the vehicle involved is the tractor and trolley then the assumption is that the goods vehicle involved in the accident is the tractor-cum-trolley, i. e. , both have to be taken together as one and for the purpose of accident they cannot be treated to be two separate vehicles. Once the accident had taken place and the vehicle involved is the tractor and trolley then the assumption is that the goods vehicle involved in the accident is the tractor-cum-trolley, i. e. , both have to be taken together as one and for the purpose of accident they cannot be treated to be two separate vehicles. In the facts and circumstances of the case as the owners of both the vehicles have consented for use of their component for carrying the agriculture produce, therefore, the award passed directing for payment of compensation at the rate of 50 per cent each is a reasonable finding as the accident is a combined effect of the use of the tractor and trolley together and they cannot be separated for the purpose of attributing liability differently to the insurance companies. Accordingly, I find no error in the joint liability fastened by the learned Tribunal on the insurance companies. ( 19. ) THE question raised by Mr. Malhotra can be considered from a different point of view also. Under the provisions of the motor Vehicles Act, 1988, motor vehicle or vehicle is defined under section 2 (28)and a tractor and trailer is defined in sections 2 (44) and 2 (46 ). A goods carriage and transport vehicle are defined in sections 2 (14) and 2 (47 ). From a perusal of the aforesaid definitions, it would be clear that a goods vehicle is a motor vehicle constructed or adapted for the use of carriage of goods. There can be no doubt that a trailer is constructed for carriage of goods and when it is pulled by a tractor both together constitute a transport vehicle, i. e. , a goods vehicle. Somewhat similar situation was considered by the Karnataka high Court in the case of D. Lakshmana murthy v. V. Rajesh, 2001 ACJ 18 (Karnataka ). In this case also, the accident arose because of the use of tractor and trailer and the person who succumbed to the accident was travelling in the trolley and the trolley was insured with the insurance company but the tractor was not insured. Similar arguments were advanced that the accident had taken place because of the use of tractor which was not insured and, therefore, insurer of the trolley/trailer cannot be held liable. Similar arguments were advanced that the accident had taken place because of the use of tractor which was not insured and, therefore, insurer of the trolley/trailer cannot be held liable. After taking note of the definitions of tractor and trailer as was applicable under the Motor Vehicles Act, 1939, the learned Judge of Karnataka High Court in this case observed as under: " (3 ). . . When the trailer is insured by the insurance company, it insures with full and complete knowledge that a trailer should be drawn by use of another motor vehicle. When this is so, when trailer is drawn by use of a tractor, it becomes goods vehicle, but it comes within the category of motor vehicle. When it is insured as motor vehicle, in that case in my opinion, if the trailer is insured and the insurance company had insured the vehicle with full knowledge that it is to be drawn or intended to be drawn by use of another motor vehicle, then it is to be deemed that the company has taken to discharge the liability and to pay the compensation for the injury caused by the use of the trailer which cannot be used without the use of a motor vehicle. So if the accident is caused by a tractor or by trailer itself, the insurance companys liability will be there irrespective of the fact that the tractor was not insured. " ( 20. ) KEEPING in view the aforesaid principle in the case of D. Lakshmana Murthy, 2001 ACJ 18 (Karnataka), i see no substance in the argument advanced by Mr. Malhotra, learned counsel for the insurer of trolley, as the same principle will apply when the ground of negligence of the owner and driver of tractor is alleged. ( 21. ) EVEN though during the course of hearing, Mr. R. V. Sharma, Mr. B. N. Malhotra and Mr. N. D. Singhal, so also, Mr. Malhotra, learned counsel for the insurer of trolley, as the same principle will apply when the ground of negligence of the owner and driver of tractor is alleged. ( 21. ) EVEN though during the course of hearing, Mr. R. V. Sharma, Mr. B. N. Malhotra and Mr. N. D. Singhal, so also, Mr. H. K. Shukla had argued very much on the various principles, but I am of the considered view that it is not necessary to deal with all these questions as the case in hand stands covered and concluded by the decisions rendered in the case of Jitendra, 2006 ACJ 1217 (MP) and Poonam Singh, 1996 ACJ 398 (MP), reproduced herein-above and this court is not required to deal with any other contention advanced at the time of hearing for deciding these appeals. ( 22. ) HAVING held so, I find no merit in the appeals filed by the insurance companies. ( 23. ) AS far as the cross-objection for enhancement filed by the claimants is concerned, I find no merit in the said cross-objection as adequate compensation has been awarded by assessing the income of the deceased, Lakhan Dhakad and the contention of Mr. N. D. Singhal to the effect that Lakhan Dhakad was earning Rs. 200 per day is not supported by any cogent documentary or oral evidence. That being so, no case for enhancement being made out, cross-objection is also dismissed. ( 24. ) ACCORDINGLY, finding no error in the award passed by the learned Tribunal, the appeals and the cross-objection stand dismissed without any order as to costs. Appeals dismissed; cross-objections dismissed.