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Rajasthan High Court · body

2011 DIGILAW 1639 (RAJ)

Oriental Insurance Co. Ltd. v. Sardarsingh

2011-08-08

N.K.MODY

body2011
Hon'ble MODY, J.—This order shall also govern the disposal of MA. No.355/08 as both the appeals are arising out of one accident. In both the appeals award under challenge is dated 17/10/07 passed by II Additional MACT, Ratlam. In MA. No.355/08 claimant is Dharmendra who has filed the claim petition No.66/06 to whom compensation of Rs.32,000/- has been awarded. While in MA. No.354/08 claimant is Sardarsingh who has filed the claim petition No.65/06 to whom compensation of Rs.68,000/- has been awarded. 2. Short facts in both the cases are that the claim petitions were filed by the claimants alleging that on 05/04/06 respondent No.1 in both the appeals were travelling in a Tractor bearing registration No.MP/43/AA-0348 attached with trolley bearing registration No. MP/43/AA-0349. It was alleged that because of rash and negligent driving of Munnalal respondent No.2 accident took place, with the result offending Tractor turtle down. It was alleged that the offending Tractor was owned by respondent Nos. 3 & 4 and insured with appellant. It was prayed that the claim petition be allowed and compensation be awarded. The claim petition was contested by the appellant Insurance Company on various grounds, including on the ground that even if it is assumed that the accident occurred, then too, appellant cannot be held liable as the offending vehicle was carrying passengers which was in violation of the terms of the policy. It was prayed that the claim petition be dismissed. In claim Case No.66/06 in which Dharmendra is claimant of which MA. No.355/08 is filed learned Tribunal awarded a sum of Rs.32,000/-, breakup of which is as under:- Rs. 25,000/- Towards injuries. Rs. 1,000/- Towards medical expenses. Rs. 5,000/- Towards loss of income. Rs. 1,000/- Towards special diet. 3. In Claim Case No.65/069 in which Sardarsingh is claimant of which MA. No.354/08 is filed learned Tribunal awarded a sum of Rs. 68,000/- breakup of which is as under:- Rs. 30,000/- Towards medical expenses. Rs. 5,000/- Towards pain and sufferings. Rs. 2,000/- Towards special diet. Rs. 1,000/- Towards travelling expenses. Rs. 10,000/- Towards loss of income. Rs. 20,000/- Towards future difficulties. 4. No.354/08 is filed learned Tribunal awarded a sum of Rs. 68,000/- breakup of which is as under:- Rs. 30,000/- Towards medical expenses. Rs. 5,000/- Towards pain and sufferings. Rs. 2,000/- Towards special diet. Rs. 1,000/- Towards travelling expenses. Rs. 10,000/- Towards loss of income. Rs. 20,000/- Towards future difficulties. 4. Learned counsel for the appellant argued at length and submits that the impugned award passed by the learned tribunal is illegal, incorrect and deserves to be set aside as the appellant Insurance Company has been held liable, while the offending vehicle was Tractor attached with trolley and was being used for the purpose of carrying passengers, which is not permissible as per policy. It is submitted that the appeal filed by the appellant be allowed and the impugned award passed by the learned tribunal be set aside. 5. Learned counsel for the respondent No.1 submits that no illegality has been committed by the learned Tribunal in allowing the claim petition filed by respondent No.1. It is submitted that the appeal filed by the appellant be dismissed. 6. From perusal of the record it is evident that while allowing the claim petition holding the appellant Insurance Company liable for payment of compensation learned Tribunal has taken into consideration the documents Ex.P/1 to Ex.P/64 filed by respondent No.1 and also the statement of Sardarsingh and Dharmendra claimants in both the appeals, who are respondent No.1. Apart from this appellant has accepted the policy which is marked as Ex.P/1 and execution of policy is admitted by respondent No.1. From perusal of policy it is evident that it is Kisan Package Insurance Policy. Appellant has submitted the general terms and conditions of Kisan Package Insurance Policy. Undisputedly accident occurred at the time when respondent No.1 in both the appeals were travelling in the tractor attached with trolley. 7. Learned tribunal while holding the appellant liable has placed reliance on Rule 97 of Motor Vehicles Rules, 1994. Appellant has submitted the general terms and conditions of Kisan Package Insurance Policy. Undisputedly accident occurred at the time when respondent No.1 in both the appeals were travelling in the tractor attached with trolley. 7. Learned tribunal while holding the appellant liable has placed reliance on Rule 97 of Motor Vehicles Rules, 1994. Relevant clause for the purpose of disposal of these appeals is Sub-Clause 7 of Rules 1997, which reads as under:- Rule 97 – Carriage of persons in goods carriage (7) – Notwithstanding anything contained in sub-rules (1) and (2) but subject to the provisions of sub-rule (5) such tractor-trailer other than those registered in the name of Industrial organisation, Municipal Institutions, water supply institution and nonagricultural co-operative societies and the unladen weight of which does not exceed 7300 kgs. may be used for the following purposes- (i) for carrying labourers and the member of the family of agriculturist for the purpose of agriculture or any purpose connected with agriculture including sale and purchase of articles of agriculture. (ii) for carrying persons at the time of Mela, Markets, Religious Functions, Marriages and at other ceremonial occasions provided that the number of persons so carried shall not exceed 20 at a time. 8. Full Bench of this Court in the matter of Bhav Singh vs. Savirani, 2008(1) MPLJ 72 has taken into consideration Rule 97(7) of Rules 1994 and after taking into consideration the law laid down in the matter of National Insurance Co. vs. Sarvanlal has observed as under:- "Para 12- Regarding the Divison Bench judgment in Sarvanlal and others (supra), we find that the Division Bench has relied on not only the judgment of the Full Bench in Jugal Kishore (supra) but also clause (7) 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 subsection (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'. 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 Sarwan Lal (Supra) insofar as it relates to 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. So far as liability of Insurance company is concerned, learned tribunal has held that appellant Insurance Company is liable because Rule 97(7) of M.P. Motor Vehicles Rules, 1994 permits to use of Tractor attached with trolley for carrying the passengers on certain occasions. In the matter of Bhav Singh (Supra) Hon'ble Full Bench of this Court held that the law laid down in the matter of Sarvanlal (Supra) has not laid down the correct law, therefore, appellant Insurance Company cannot be held liable for payment of compensation on that account. 10. In the matter of Bhav Singh (Supra) Hon'ble Full Bench of this Court held that the law laid down in the matter of Sarvanlal (Supra) has not laid down the correct law, therefore, appellant Insurance Company cannot be held liable for payment of compensation on that account. 10. So far as contention of respondent No.1 that respondent No.3 was third party is concerned, in the matter of Bhav Singh (Supra) Hon'ble Full Bench has held that any person other than the insurer and the insured who are parties to the insurance policy is a third party. It was also held that the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of Section 147 of the Act or under the terms and conditions of the policy of insurance. It was further observed by the Hon'ble Full Bench that the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under Section 147 of the Act or under the terms and conditions of the insurance policy. 11. Since respondent No.1 in both the appeals were travelling in a tractor attach with trolley which was insured with the appellant under Kisan Package Insurance Policy and the tractor was insured for agricultural purposes, therefore, even if respondent No.1 in both the appeals were third party, they were not covered under Section 147 of Motor Vehicles Act and in the circumstances learned tribunal committed error in holding the appellant insurance company liable for payment of compensation. Similar view has been taken by this Court in the matter of National Insurance Co. Ltd. vs. Bantu passed in MA. No.2451/05 decided on 16/05/2008. 12. In view of the aforesaid appeal filed by the appellant is allowed and the impugned award passed by the learned tribunal is modified to the extent that respondent Nos. 2 to 4 shall be liable to satisfy the award and the appellant stands exonerated. 13. With the aforesaid observations, appeal stands disposed of. Copy of the order be placed in the record of connected appeal. No order as to costs.