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Madhya Pradesh High Court · body

2008 DIGILAW 1311 (MP)

Rambai v. Sanju

2008-11-10

J.K.MAHESHWARI

body2008
ORDER (Oral) 1. This order shall govern disposal of M.A. No. 57/08 and M.A. No. 3664/07 (Shri Gendalal & others v. United India Insurance Company & others). M.A. No. 57/08 has been filed by the claimant for enhancement as well as to assail the finding of the liability to pay the compensation against the owner and driver, exonerating the Insurance Company; while in M.A. No. 3664/07 the owner and driver have come to challenge the award assailing the liability fastened on them exonerating the Company from such payment. 2. The facts in brief are that the son of claimants Kailash aged IO years was sitting in a tractor trolley bearing No. MP-11M-3499 and MP-11M-4672 respectively. The tractor trolley was being used for carrying the bricks for construction of a house to put agricultural produce or goods in the field on one Tirkhiya where in deceased was sitting as labourer. It was driven rashly and negligently; however, turn turtled. Accordingly, claimants' son Kailash died, Claim petition was filed seeking compensation to the tune of Rs. 5,00,000/-. Respondents No.1 & 2 have filed their reply with specific plea that the tractor was used for construction of a house in the field of Tikhiya, who is near relative, without taking any remuneration for hire. The said construction was being done in the field of Tikhiya to put the agricultural produce and goods; however, there is no violation of the terms and conditions of the Insurance policy. Once the tractor trolley was insured with the Company, the liability, if any fastened. Ought to have been indemnified on the Company and the payment of compensation must be directed against them. 3. Insurance Company by filing their reply has averred that because the tractor trolley was not being used for agricultural purposes and was used in other than agriculture and the deceased was sitting in a trolley; however, due to use of the said tractor trolley for other than agricultural purpose for which it was insured i.e., agriculture, therefore, it is a case of violation of the terms and conditions of the policy. Hence, the Company cannot be held responsible for payment of compensation indemnifying the liability. The Claims Trihunal has passed an award granting compensation to the tune of Rs. Hence, the Company cannot be held responsible for payment of compensation indemnifying the liability. The Claims Trihunal has passed an award granting compensation to the tune of Rs. 1,50,000/- against the respondents No. 1 & 2 exonerating the Insurance company, because the tractor trolley was being used for other than agricultural purpose to which it was insured, therefore, it is amounting to violation of the terms and conditions of the policy. In such a situation the Company cannot be saddled with the liability for payment of compensation. It is the owner who ought to have paid the compensation. In that view of the matter the claim petition was dismissed. 4. Shri Ahhayankar and Shri Laad, learned counsel appearing on behalf of the claimants as well as the owner and driver have argued with vehemence that the finding as recorded by the Claims Tribunal is not in conformity with the facts as well as on law. The Tribunal while recording such finding has not come across to the entire testimony of PW 2 Jaising and merely reading part of the testimony of such witness finding has been recorded. It is further argued that as per the statement of DW 1, J.P. Soni it is apparent that the witness of the Insurance Company has not made it clear that what was the purpose of agricultural use; however, in absence of specification of agricultural purpose and in view of the statement of PW 2 Jaising it is clear that a house was being constructed in the field of Tikhiya to put the agricultural produces and goods therein. Thus, on joint reading of statement of PW 2 Jaising and DW 1, J.P. Soni it is apparent that the tractor trolley was being used for the agricultural purposes, therefore, the liability for payment of compensation ought to have been fasten against the Company and not against the owner. Reliance has been placed on a OB judgment of this Court in the case of Narendra Singh v. Govend and another whereby this Court has directed to pay the compensation against the Insurance Company when the construction was being raised for the use of agricultural purpose, wherein tractor was loaded with bricks for the construction. Reliance has been placed on a OB judgment of this Court in the case of Narendra Singh v. Govend and another whereby this Court has directed to pay the compensation against the Insurance Company when the construction was being raised for the use of agricultural purpose, wherein tractor was loaded with bricks for the construction. In that view, it is argued that the finding as recorded by the Claims Tribunal exonerating the Insurance Company may be ordered to be set aside and the respondent Company may be directed to pay compensation indemnifying the liability. In the alternative Shri Abhyankar, counsel appearing for the claimants appellants has made a prayer that at least the compensation which is awarded may be directed to be paid by the Company with a right to recovery from the owner to them. 5. On the other hand, Shri Anil Goyal and Shri Jindal, counsel appearing for the Insurance Company submit that it is a case in which the tractor trolley belongs to one Gendalal and the construction was being carried out in a field of one Tikhiya and not of Gendalal. Deceased was sitting in a trolley which was engaged by Tikhiya not by Gendalal. More so, a boy of 10 years cannot be engaged as a labourer even in brick works. In these facts and circumstances looking to the statement of PW 2 Jaising the finding as recorded by the Claims Tribunal cannot be said to be perverse or illegal; however, such finding is liable to be upheld. The exoneration of the Company as directed by the Tribunal, because the vehicle was being run in violation of the terms and conditions of the policy, is in accordance with law; however, the alternative prayer as made by Shri Abhyankar too cannot be accepted for indemnifying the liability of the owner, once the vehicle was being plied contrary to the terms and conditions of contract i.e., insurance. 6. After having heard learned counsel for the parties it is not in dispute that the deceased was sitting in a trolley over and above the bricks as apparent from the statement of PW 2 Jaisingh. It is also not in dispute that the construction was being raised in a field of Tikhiya, who was not the owner or driver of the vehicle. The deceased was not engaged by the owner as labourer, but it was engaged by one Tikhiya. It is also not in dispute that the construction was being raised in a field of Tikhiya, who was not the owner or driver of the vehicle. The deceased was not engaged by the owner as labourer, but it was engaged by one Tikhiya. It has not been duly explained why the construction was being raised in a field of Tikhiya and under what circumstances the tractor of Gendalal was being given to Tikhiya. It is also not in dispute that the tractor and trolley was insured for agriculture purposes and it is known to the owner, while entering into the contract with the Insurance Company. In absence of any cogent evidence on behalf of the claimant to prove that the tractor trolley was being used for agricultural purposes the finding of the Tribunal as recorded, considering the statements of PW 2 Jaisingh as well as DW 1 J.P. Soni and the policy cannot be said to be illegal or perverse, therefore, liable to be upheld. The arguments as advanced by Shri Abhyankar and Shri Laad in this regard is of no substance, in view of the fact that the tractor was not being used by the owner for construction of house to put agricultural produce of his own and the deceased was engaged by Tikhiya, who was sitting in a trolley, which was only for the purpose of carrying the goods and not for the passengers. In that view of the matter, I am of the considered view that the finding as recorded by the Claims Tribunal, awarding compensation and fastening such liability against owner and driver by exonerating the Insurance Company is in accordance with law and not liable to be interfered with. Shri Abhyankar, learned counsel for the appellants in M.A. No. 57/08 does not press prayer for enhancement of the compensation. 7. In view of above, I find no substance in both the appeals, hence, dismissed. There shall be no order as to costs. A copy of this order be tagged with the connected M.A. No. 3664/07.