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2009 DIGILAW 153 (MP)

New India Assurance Co. Ltd. v. Janki Ahirwar

2009-01-30

S.K.GANGELE

body2009
JUDGMENT :- Gangele, J. 1. This appeal has been filed by the appellant insurance company under section 173 of the Motor Vehicles Act, 1988 against the award dated 16.4.2007, passed by the First Member, Motor Accidents Claims Tribunal, Datia, in Claim Case No. 45 of 2006. 2. The claimant submitted in his claim application filed before the Claims Tribunal that on 27.3.2006, he was travelling in a trolley, bearing registration No. MP 07-H 5321, which was attached to a tractor bearing registration No. UP 93-F 6099. He was going to have a darshan of Mata Ratangarh. Due to rash and negligent driving of the driver of the tractor the tractor turned turtle and trolley attached to the tractor also turned turtle. In the aforesaid accident the claimant received serious injuries. 3. From the pleadings of the claimant in the claim application, it is clear that he was travelling in a trolley attached to the tractor and going to have a darshan of Mata Ratangarh. 4. It is an admitted fact that the tractor was insured for agricultural purpose by the insurance company. The insurance of the tractor was comprehensive as per the insurance policy. But the fact remains that the claimant was travelling in the trolley, which was attached to the tractor to have a darshan of Mata Ratangarh. 5. The Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Serjerao, 2008 ACJ 254 (SC), with regard to liability of the persons travelling in a trolley has held as under: "(8) So far as the question of liability regarding labourers travelling in trolleys is concerned, the matter was considered by this court in Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909 (SC) and it was held that the insurance company has no liability. In view of the aforesaid two decisions of this court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this court in Yallwwa's case, 2007 ACJ 1934 (SC) and Brij Mohan's case (supra)." 6. Hon'ble Supreme Court further held in New India Assurance Co. Hon'ble Supreme Court further held in New India Assurance Co. Ltd. v. Vedwati, 2007 ACJ 1043 (SC), with regard to liability of payment of compensation by the insurance company for the passengers travelling in the goods vehicle as under: "(11) Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to section 147 of the Act (sic) is to be (sic) with section 96 (sic 95) of the old Act. Proviso to section 147 of the Act reads as follows: 'Provided that a policy shall not be required (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.' (12) It is of significance that proviso appended to section 95 of the old Act contained clause (ii) which does not find place in the Act. The same reads as follows: '(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.' (13) The difference in the language of 'goods vehicle' as appear in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act. The position becomes further clear because the expression used is 'goods carriage' which is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to section 95 of the old Act prescribing requirement of insurance policy. Even section 147 of the Act mandates the compulsory coverage against death of or bodily injury to any passenger of 'public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under Workmen's Compensation Act, 1923 (in short as 'the W.C. Act'). There is no reference to any passenger in 'goods carriage'. (14) The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor." 7. A Division Bench of this court in the case of Arun Kumar Patel v. Terasi Saket,ILR (2008) MP 282, with regard to liability of the payment of compensation to the persons travelling in trolley attached with a tractor as baratis held as under: "(10) Coming to the submission based on rule 97 of M.P. Motor Vehicles Rules, that has been considered by a Full Bench of this court in Bhav Singh v. Savirani, 2008 ACJ 1043 (MP), in which the Full Bench has opined that rule 97 is not with respect to section 147 of Motor Vehicles Act. Rule 97 has been framed with respect to permit conditions not to cover the risk under section 147 which is contained in a different Chapter of Motor Vehicles Act. Rule 97 has been framed with respect to permit conditions not to cover the risk under section 147 which is contained in a different Chapter of Motor Vehicles Act. Full Bench of this court has held thus: '(12) Regarding the Division Bench judgment in Sarvanlal's case, 2005 ACJ 1401 (MP), we find that the Division Bench has relied on not only the judgment of the Full Bench in Jugal Ki-shore's case, 2004 ACJ 297 (MP), but also clause (vii) of rule 97 of the Motor Vehicles Rules, 1994 (for short as 'the Rules of 1994') made by the State of M.P. So far as the judgment of the Full Bench in Jugal Kishore 's case (supra), is concerned, we have already clarified the position of law. Regarding clause (vii) of rule 97 of the Rules of 1994, we find that Rules of 1994 have been made by the State of M.P. under section 96 of the Act and in particular sub-section (2) (xxxi) which provides that without prejudice to the generality of the foregoing power, rules under section 96 may be made with respect to the carriage of persons other than the driver in goods carriage. Section 96 is placed in Chapter V of the Act which relates to 'Control of Transport Vehicles'. Sub-section (1) of section 96 of the Act states that the State Government may make rules for the purpose of carrying into effect the provisions of Chapter V. Hence, rule 97 of the Rules of 1994 has been made by the State Government to give effect to the provisions of Chapter V of the Act, which, as we have seen, relates to 'Control of Transport Vehicles'. These rules obviously cannot have a bearing in interpreting the provisions of Chapter XI of the Act including sections 145 and 147 of the Act. As we have indicated above, the liability of the insurer to indemnify the insured in respect of death or bodily injury suffered by a passenger or an employee would be covered by the provisions of section 147 of the Act or the terms and conditions of the insurance policy. Thus, the decision of the Division Bench in Sarvanlal's case (supra) in so far as it relies on rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passenger does not lay down the correct law'." 8. Thus, the decision of the Division Bench in Sarvanlal's case (supra) in so far as it relies on rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passenger does not lay down the correct law'." 8. It is clear from the principle of law laid down by Hon'ble Supreme Court and Division Bench of this court that insurance company is not liable to pay compensation for the person who suffers injuries while travelling as passenger in the trolley to have a darshan of Mata Ratangarh. Hence, the award passed by the Tribunal is contrary to law. Consequently, the appeal filed by the insurance company is hereby allowed. It is hereby held that the insurance company is not liable for the payment of compensation. The claimant is at liberty to execute the award against the owner or driver of the tractor. If any amount deposited by the insurance company or paid to the claimant, it can recover the same from the owner of the tractor. The impugned award is modified to the extent as indicated above. No order as to costs.