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Madhya Pradesh High Court · body

2009 DIGILAW 938 (MP)

United India Insurance Co. Ltd. v. Anguri Devi

2009-08-06

S.K.GANGELE

body2009
Judgment Gangele, J. ( 1. ) -The appellant insurance company has filed this appeal under section 173 of the Motor Vehicles Act, 1988 against the award dated 14.3.2005, passed by the Second Additional Motor Accidents Claims Tribunal (Fast Track Court), Datia, in Claim Case No. 12 of 2004. ( 2. ) On 17.2.2004, at around 4 oclock, the deceased Narayan Kushwah had been travelling in a tractor bearing registration No. MP 32-M 4132. It is alleged that due to rash and negligent driving of the driver of the tractor, the tractor turned turtle and in the aforesaid accident, the deceased died. Report of the accident was lodged at the police station and the police registered an offence under section 304-A of Indian Penal Code vide Crime No. 35 of 2004 against the driver of the tractor. Thereafter the claimants filed the claim application before the Claims Tribunal claiming total compensation of Rs. 26,64,000. ( 3. ) The Claims Tribunal had held that deceased was travelling in the tractor. Due to rash and negligent driving of the driver of the tractor, the deceased died. The tractor was insured by the non-applicant No. 3 insurance company for agriculture purpose, hence, the driver, owner and the insurance company are jointly and severally liable for payment of compensation and awarded a total compensation of Rs. 3,60,000. ( 4. ) Learned counsel for the appellant insurance company has submitted that the insurance company is not liable to indemnify the insured because only the risk of the driver of the tractor was covered and the tractor was insured for agriculture purpose. ( 5. ) From the pleadings of the claimants, it is clear that deceased had been travelling in a tractor. It is an admitted fact that the tractor was insured for agriculture purpose by the insurance company not for carrying passenger and only the risk of the driver of the tractor was covered. ( 6. ) The Honble 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. 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 Yallwwas case, 2007 ACJ 1934 (SC) and Brij Mohans case, 2007 ACJ 1909 (SC)." ( 7. ) Honble 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 (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 Workmens 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 (iii) 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. (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. (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 the 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. 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 the compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to the liability under Workmens 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." ( 8. 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." ( 8. ) A Division Bench of this court in the case of Arun Kumar Patel v. Terasi Saket, ILR (2008) MP 282, with regard to liability for 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. Full Bench of this court has held thus: (12) Regarding the Division Bench judgment in Sarvanlals case, 2005 ACJ 1401 (MP), we find that the Division Bench has relied on not only the judgment of Full Bench in Jugal Kishores case, 2004 ACJ 297 (MP), but also clause (vii) of rule 97 of the M.P. 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 Kishores case (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 carriages. Section 96 is placed in Chapter V of the Act which relates to Control of Transport Vehicles. 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 Sarvanlals 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." ( 9. ) It is clear from the principle of law laid down by Honble 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 tractor. Hence, in my opinion, the award passed by the Claims Tribunal is contrary to law. Consequently, appeal filed by the insurance company is allowed. It is hereby held that the insurance company is not liable to indemnify the insured. The impugned award is modified to the extent as indicated above. No order as to costs. Appeal allowed.