Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 231 (MP)

Nathusingh Kushwah v. Narayan Singh

2009-02-16

S.K.GANGELE

body2009
JUDGMENT :- Gangele, J. 1. Both the appeals have Vehicles Act, 1988 against the common been filed under section 173 of the Motor award dated 26.10.2006 in Claim Case No. 37 of 2006, passed by the Seventh Motor Accidents Claims Tribunal (Fast Track), Gohad, District Bhind. Because both the appeals have been filed against the same award and arisen out of the same accident, hence the appeals have been taken together and heard finally and disposed of by this common order. M.A. No. 123 of 2007 has been filed by the owner of the tractor and M.A. No. 1257 of 2006 has been filed by the insurance company. 2. On 22.1.2006, deceased Girjadevi was travelling on a tractor bearing registration No. MP 33-M 6113. She was travelling on the mudguard of the tractor. Due to rash and negligent driving of the driver of the tractor, deceased Girjadevi fell down from the tractor and died on the spot. The report of the accident was lodged at the Police Station Nayagaon, District Bhind vide Crime No. 5 of 2006 for an offence under section 304-A of Indian Penal Code was registered against the driver of the tractor. The driver was tried before the Judicial Magistrate (First Class), District Bhind in Crime No. 160 of 2006. Thereafter the claimants claimed total compensation of Rs. 12,40,000 before the Claims Tribunal. 3. The Claims Tribunal has held that the accident occurred due to rash and negligent driving of the driver of the tractor. The tractor was insured by the insurance company and awarded a total compensation of Rs. 1,77,000. The Claims Tribunal further held that the insurance company shall pay the amount to the claimants and it can recover from the owner of the tractor. 4. Learned counsel for the insurance company has submitted that the findings of the Tribunal that insurance company shall pay the amount to the claimants is contrary to law. 5. Contrary to this, learned counsel for the owner of the tractor has submitted that the owner is not responsible for payment of compensation. 6. From the facts of the case, it is clear that the deceased died when she was travelling on the mudguard of the tractor at the relevant time. The tractor was insured by the insurance company for agriculture purpose and as per the insurance policy, Exh. D1, the risk of the driver was covered. 7. 6. From the facts of the case, it is clear that the deceased died when she was travelling on the mudguard of the tractor at the relevant time. The tractor was insured by the insurance company for agriculture purpose and as per the insurance policy, Exh. D1, the risk of the driver was covered. 7. 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 v. National Insurance Co. Ltd., 2007 ACJ 1934 (SC) and Brij Mohan's case (supra)." 8. Hon'ble Supreme Court further held in the case of 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 of the old Act. Proviso to section 147 of the Act (sic) is to be (sic) with section 96 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 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: '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, or' (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. 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' 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. The position becomes further clear because the expression used is 'goods carriage' 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 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 the Workmen's Compensation Act, 1923 (in short '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." 9. 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 MP. 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 the 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, 'the Rules of 1994') made by the State of M.P. So far as the judgment of the Full Bench in Jugal Kishore (supra) is concerned, we have already clarified the position of law. Regarding clause (7) of rule 97 of the Rules of 1994, we find that the 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 XII 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 insurance policy. Thus, the decision of the Division Bench in Sarvanlal (supra) insofar as it relies on rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passengers does not lay down the correct law' 10. 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 a passenger in the tractor. Consequently, M.A. No. 123 of 2007, filed by the owner of the tractor is hereby dismissed and M.A. No. 1257 of 2006, filed by the insurance company is hereby allowed. It is hereby held that the insurance company is not liable for payment of compensation. Consequently, M.A. No. 123 of 2007, filed by the owner of the tractor is hereby dismissed and M.A. No. 1257 of 2006, filed by the insurance company is hereby allowed. It is hereby held that the insurance company is not liable for payment of compensation. If any amount has been paid to the claimants by the insurance company, the insurance company can recover the same from the owner of the tractor and for the purpose of rest of the amount, the insurance company is not liable for payment of compensation. The liability for payment of compensation fixed as per the award by the Claims Tribunal is of the non-applicant No. 1, owner of the tractor. The impugned award is modified to the above extent. No order as to costs. Orders accordingly.