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Madhya Pradesh High Court · body

2007 DIGILAW 536 (MP)

Beesaaha v. United India Insurance Co. Ltd.

2007-05-08

D.R.DESHMUKH, H.L.DATTU

body2007
ORDER D.R. Deshmukh, J. 1. Being aggrieved by the rejection of the application for compensation vide award dated 14-8-1997 passed in Claim Case No. 12/94 by the IInd Additional Motor Accidents Claims Tribunal, Bilaspur (henceforth 'the MACT'), the appellant/claimant has preferred this appeal. 2. Following facts are not disputed. Appellant/claimant was the owner of Tractor-trolley No. MP-26/E-0390 on 28-3-1993 covered under a policy of insurance by the respondent for agricultural purposes. On 28-3-1993, at about 9 P.M., the appellant/claimant was returning with 5 labourers from a quarry after filling stones in the Trolley. While on a down-gradient, the Tractor had turned turtle. One of the labourers, i.e., Mohan had lodged a report on the same day at P.S. Ratanpur that while the appellant/claimant was driving the Tractor-trolley in a rash and negligent manner on a down-gradient, it went out of control and turned turtle. A criminal prosecution for causing injury due to rash or negligent driving was launched against the appellant/claimant, in which he was convicted upon pleading guilty and sentenced to fine. 3. The appellant/claimant pleaded that due to the accident, he suffered 25% permanent disability on his left foot. Since the policy of insurance was a comprehensive policy, the respondent/insurer was liable to pay total compensation of Rs. 4,90,000/- towards the injury sustained by him as also for the damage caused to the Tractor-trolley. 4. The respondent/insurer denied liability to pay compensation on the ground that the accident was a result of the rash and negligent driving by the appellant/claimant himself, who did not possess a valid driving licence. At the time of accident, the Tractor-trolley insured solely for agricultural purposes, was used to breach of the policy as the appellant/claimant was transporting stones for non-agricultural purpose. 5. The learned MACT recorded a finding that the Tractor- trolley was being used for agricultural purposes by the appellant/claimant, who had suffered 25% permanent disability on the left foot. However, recording a finding that the appellant/claimant did not possess a valid driving licence and had used the Tractor-trolley for carrying passengers in breach of the policy and the risk of the owner, i.e., appellant/claimant was not covered under the policy of insurance, rejected the application for compensation. 6. Shri Sudhir Agrawal, learned Counsel for the appellant/claimant urged that photo copy of the driving licence of the appellant/claimant was filed before the learned MACT and that the claim form, Exh. 6. Shri Sudhir Agrawal, learned Counsel for the appellant/claimant urged that photo copy of the driving licence of the appellant/claimant was filed before the learned MACT and that the claim form, Exh. D-3 submitted to the insurer by the appellant/claimant also revealed that he had given full particulars of his driving licence. In this view of the matter, since the respondent/insurer did not lead any evidence in rebuttal, the finding recorded by the learned MACT that the appellant/claimant did not possess a valid driving licence on 28-3-1993 was wholly erroneous. Reliance was placed on Punam Devi and Anr. v. Divisional Manager, New India Assurance Co. Ltd. and Ors. 2004 ACJ 785. It was next contended that the policy of insurance did not specifically mention the various heads under which the premium had been recovered by the insurer and, therefore, in the absence of any evidence led by the insurer, it could not be held that the risk of the owner was not covered. 7. It was also urged that the insurance policy, Ex. NA-1 clearly showed that premium for the risk of the driver had been received by the insurance company and, therefore, since the owner himself was driving the vehicle, his risk was covered. On breach of policy, it was argued that once the learned MACT recorded a finding that the Tractor-trolley was being used for agricultural purposes, it could not be held by the learned MACT that the Tractor-trolley was being used for carrying passengers. Lastly, it was contended that the appellant/ claimant was at least entitled to compensation for damage caused to the vehicle since the Tractor-trolley was covered under a comprehensive policy of insurance. 8. On the other hand, Shri Dashrath Gupta, learned Counsel for the respondent/insurer urged that the accident was a result of the rash and negligent driving of the Tractor-trolley by the appellant/claimant himself and, therefore, the appellant/claimant was not entitled to any compensation from the insurance company. Reliance was placed on Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha and Ors. 2007 AIR SCW 859. Reliance was placed on Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha and Ors. 2007 AIR SCW 859. It was also urged that under Section 165 of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988'), the MACT has jurisdiction only to adjudicate upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both and, therefore, the compensation for damage to the vehicle insured and owned by the appellant/claimant could not be awarded by the learned MACT. It was also urged that since the risk of the owner was not covered under the comprehensive policy of insurance, the insurance company was not liable to pay compensation. Reliance was placed on Dhanraj v. New India Assurance Co. Ltd. and Anr. (2004) 8 SCC 553 . (Emphasis supplied by us) 9. Having heard the rival contentions, we have perused the record with utmost circumspection. Although we are of the opinion that the dismissal of the application for compensation by the learned MACT was correct, yet we do not concur on some of the findings recorded by the learned MACT and would like to state our own reasons for it. 10. The claimant, in the application for compensation at Paragraph 4, had specifically pleaded that Mohan, one of the labourers, travelling in the tractor at the time of occurrence, had lodged a report against him that he drove the tractor in a rash and negligent manner and caused the accident. It was also pleaded that in the criminal prosecution launched against the appellant/ claimant, he had pleaded guilty and was sentenced to pay a fine. In his testimony also, the appellant/claimant admitted this fact that the tractor had turned turtle while on a down-gradient. He also admitted the factum of the FIR being lodged against him by Mohan and the confession of guilt by him and the sentence of fine imposed on him in the criminal prosecution. Although the appellant/claimant filed a copy of the FIR lodged by Mohan, yet the appellant/claimant did not examine him. A perusal of the copy of the FIR filed by the appellant/claimant shows that it was mentioned that the appellant/claimant was driving the tractor negligently at a very high speed. Although the appellant/claimant filed a copy of the FIR lodged by Mohan, yet the appellant/claimant did not examine him. A perusal of the copy of the FIR filed by the appellant/claimant shows that it was mentioned that the appellant/claimant was driving the tractor negligently at a very high speed. Taking the admission of the appellant/claimant in evidence at Paragraph 10, on its face value an inference can safely be drawn that during the night, the appellant/claimant was driving the tractor in a high speed and was unable to control it on a down-gradient, due to which, the tractor had turned turtle. In this manner, it is established that the accident was caused due to the rash and negligent driving by the appellant/claimant himself. 11. In the case of Oriental Insurance Co. Ltd. v. Smt. Jhuma Saha and Ors. (supra), it was held that where the deceased owner of the vehicle was himself to be blamed for the accident, which did not involve motor vehicle other than the one which he was driving, the question of the insurer being liable to indemnify the insured would not arise. Placing reliance on the aforesaid decision, we are of the considered view that in the present case also the appellant/claimant was himself to be blamed, since the accident did not involve any motor vehicle other than the one which the appellant/claimant was driving and the accident resulted due to the rash and negligent driving by the appellant/claimant himself. Therefore, the question of the insurer being liable to indemnify the insured would not arise and the application for compensation was liable to be dismissed. 12. The finding recorded by the learned MACT that the tractor was being used for agricultural purposes is perverse since it is based on no evidence. It is merely a conjecture of the MACT and nothing else. The appellant/claimant admitted that at the time of occurrence, he had taken the tractor from Dhourabhatha to the quarry and was performing the first trip of transporting stones, which were to be used for construction of a boundary wall around his house in Village Khaira. This, by no stretch of imagination, could be construed to be use of the Tractor-trolley for agricultural purposes. This, by no stretch of imagination, could be construed to be use of the Tractor-trolley for agricultural purposes. The time of the accident, being late at night, the purpose for which the appellant/claimant was performing trips for unloading the stones at his house would leave no room for any doubt that the tractor in question was being used for a purpose other than for which it was insured, i.e., for non-agricultural purpose. Thus, a clear breach of policy by the applicant/claimant is established and, therefore, on this count also, the respondent/insurer is not liable to indemnify the insured. 13. The finding recorded by the learned MACT, that the appellant/ owner did not possess a valid driving licence, cannot be sustained. During the proceedings before the MACT, the appellant/claimant had submitted an interrogatory to the insurer for admission of the photo-copy of the insurance policy, which was filed with the application for compensation. Exh. D-3, which is a claim preferred by the appellant/claimant for damages and which was filed by the insurer also clearly goes to show that the appellant/claimant had furnished the licence number, the details of the Issuing Authority and the nature of the licence. In this view of the matter, the onus of proving its pleading that the appellant/claimant did not possess a valid driving licence, was on the respondent/insurer. Since no evidence was led by the respondent/insurer, the finding recorded by the MACT that the appellant/claimant did not possess a valid driving licence at the time of occurrence, is wholly erroneous. 14. It is not disputed that at the time of occurrence, the appellant/ claimant was carrying 5-6 labourers in the tractor. P.K. Sharma, an officer of the insurance company, who was examined by the appellant/claimant, clearly stated that the comprehensive insurance policy covered only the damages to the tractor and trolley, third party risk and the risk of a salaries driver. In this view of the matter, it is clear that the risk of the labourers, being carried in the Tractor-trolley by the appellant/claimant, was not covered by the insurance policy. It was urged by the learned Counsel for the appellant that the insurance policy clearly showed that premium of Rs. 18/- had been paid to cover the risk of the driver. However, such risk related to a salaried driver employed by the appellant/ claimant and not the appellant/owner himself. It was urged by the learned Counsel for the appellant that the insurance policy clearly showed that premium of Rs. 18/- had been paid to cover the risk of the driver. However, such risk related to a salaried driver employed by the appellant/ claimant and not the appellant/owner himself. In the case of Dhanraj v. New India Assurance Co. Ltd. and Anr. (supra), it was held by the Apex Court that a comprehensive policy by its very nature does not cover the risk of injury to the owner of vehicle, therefore, unless it is shown that premium had been paid to cover risk for injury to owner also, the insurer would not be liable to pay compensation for any injury suffered by the owner. In the present case also, there is nothing on record to show that the personal risk of the appellant/ claimant had been covered by the policy of insurance. Therefore, merely on the ground that the policy of insurance was a comprehensive policy, it cannot be held that the risk of the owner was also covered and the insurer is liable to pay compensation for personal injuries suffered by the appellant/owner. In Smt. Urmila Bai and Ors. v. Policy Issuing Office, Branch Manager, the Oriental Insurance Company Limited, M.A. (C) No. 159/2007, vide order dated 13-2-2007, a Division Bench of this Court held that only in a case where the owner has also insured his vehicle to cover his personal injuries for unlimited extent, that the insurance company would be liable under a comprehensive policy of insurance. In this view of the matter, we are of the considered opinion that in the present case, the policy of insurance issued by the respondent/insurer did not cover the personal injuries suffered by the appellant/owner. 15. So far as the question of compensation for the damage to the Tractor-trolley owned by the appellant/claimant is concerned, Section 165 of the Act, 1988 clearly shows that the MACT has been constituted for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, for damages to any property of a third party so arising, or both. Therefore, the MACT has no jurisdiction to award compensation for damage to the Tractor-trolley owned by the insured. Therefore, the MACT has no jurisdiction to award compensation for damage to the Tractor-trolley owned by the insured. For this, the appellant/claimant is at liberty to invoke his right under any other enactment, if available. 16. Having thus considered the rival contentions, we are of considered view that this appeal is devoid of merit and is liable to be dismissed. Accordingly, this appeal is dismissed.