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2011 DIGILAW 2096 (RAJ)

Chena Ram v. Oriental Insurance Co. Ltd.

2011-09-27

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been filed by non-claimant-appellants, owner and driver of offending vehicle, against the award dated 22.06.2005 of learned Motor Accident Claims Tribunal, Ajmer, in Claim Petition No.59/2005 (29/2003), whereby learned Tribunal awarded compensation of Rs.4,24,400/- to claimant-respondents in a death claim, with interest thereon at the rate of 6% per annum from the date of filing of the claim petition. 2. Shri Mahendra Goyal, learned counsel for appellants, has argued that respondent insurance company has been illegally absolved of its liability on the ground that trolley attached with tractor, is not part of the tractor, which was insured with it, whereas the trolley itself formed part of the tractor and the insurance company is liable for payment of the awarded amount of compensation for any accident, which has occurred on account of trolley attached to tractor. It was argued that the evidence on record suggests that the trolley turned turtle in right side when driver of tractor wanted to save a maruti car, and the liability therefore could not be fastened upon the appellants. This cannot be considered to be a breach of trust making the appellants liable for payment of compensation. Learned counsel referred to the claim petition and argued that therein it was specifically pleaded that deceased was going from his village Netadia to Merta for purchase of seeds for agriculture purpose with the appellant driver Chena Ram in the tractor in question and therefore it cannot be said that the purpose for which deceased was travelling in the tractor was not an agriculture purpose. Learned counsel also referred to the statement of NAW-1 Harmeet Singh, witness of the insurance company, and argued that this witness in cross examination, has denied this fact and stated that he did not know as to for what purpose the deceased was travelling in the tractor. Learned counsel also referred to the statement of NAW-2 Arun Singhal, who was a witness of the insurance company, and argued that this witness has stated that insurance of trolley for agriculture purpose is not necessary, which means that if the tractor was insured, the trolley was not required to be separately insured. Learned counsel argued that mere tractor cannot be put to agriculture use. A tractor is capable of being used for agriculture purpose only if it is attached with trolley. Learned counsel argued that mere tractor cannot be put to agriculture use. A tractor is capable of being used for agriculture purpose only if it is attached with trolley. Learned counsel, in support of his arguments, relied on the judgments of this Court in National Insurance Company Limited Jodhpur vs. Smt. Deewa and Others – 2003 ACTC 644 = RLW 2003(1) Raj. 652 and New India Assurance Company Limited vs. Khima Ram and Others – 2003 ACTC 241 = RLW 2003(1) Raj. 493. 3. Per contra, Smt. Archana Mantri, learned counsel for respondent insurance company, opposed the appeal and argued that the tractor was insured with respondent insurance company for agriculture purpose only. Neither deceased Lakshman was labourer of the appellants nor in any way was he related to them so as to say that he used to work on their agriculture field. In reply to the claim petition, it was specifically stated by the insurance company that as per the document on record deceased Lakshman and his wife Gyarsi were sitting in trolley attached to the tractor. Trolley was not insured with the insurance company. Learned counsel referred to the statement of AW-1 Gyarsi wife of deceased and submitted that this witness has stated that her husband used to run a 'chhakda' (bullock-cart). The evidence has proved that goods of a tent house were loaded on the trolley, which cannot be considered to be an agriculture purpose. Learned counsel argued that the tractor was insured for agriculture purpose with only one driver and premium was charged only for that purpose. The statement of NAW-1 and NAW-2 cannot be read out of context. NAW-1 Harmeet Singh, the investigator, has stated that during the investigation he found that goods of a tent house were loaded in the tractor. NAW-2 Arun Singhal has categorically stated that insurance company did not charge any premium for the passengers and that the trolley was not insured, therefore, his subsequent statement was inconsequential. 4. Learned counsel in support of her arguments, relied on a judgment of this court in The New India Assurance Company Limited vs. Smt. Manwati and 14 Others – 2003 WLC (Raj.) UC 442 and submitted that similar argument has been rejected in that case. 4. Learned counsel in support of her arguments, relied on a judgment of this court in The New India Assurance Company Limited vs. Smt. Manwati and 14 Others – 2003 WLC (Raj.) UC 442 and submitted that similar argument has been rejected in that case. She also relied on judgments of the Supreme Court in National Insurance Company Limited vs. V. Chinnamma and Others – 2004 (3) T.A.C. 577 (S.C.), United India Insurance Company Limited vs. Serjerao – MACD 2008 (SC) 33 and Oriental Insurance Company Limited vs. Brij Mohan and Others – 2007 (3) T.A.C. 20 (S.C.) = RLW 2007(4) SC 3013. 5. On hearing learned counsel for the parties and perusing the record, I find that the issue is concluded against the appellants in United India Insurance Company Limited vs. Serjerao and Others, supra, in which case labourers were travelling in a trolley attached to a tractor. In the light of earlier judgment of the Supreme Court in Oriental Insurance Company Limited vs. Brij Mohan and Others, supra, it was held that there was no liability of the insurance company. The Supreme Court held that in a given situation having regard to the liability of the owner, a claim Tribunal need not go into the question as to whether the owner of the vehicle in question was at fault or not, but determination of the liability of the insurance company stands on a different footings. When a statutory liability has been imposed upon the owner, the same cannot extend liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefor. In Brij Mohan, supra, the Supreme Court on the question of liability regarding labourers travelling in trolley, held that insurance company has no liability. 6. This court in The New India Assurance Company Limited vs. Smt. Manwati and 14 Others, supra, also dealt with the case where certain persons were travelling in a tractor trolley and the tractor turned turtle resulting into injuries to those persons. Tractor was insured only for agriculture purpose. No risk premium was paid for those passengers. Insurer was held not to be liable to pay compensation. 7. Tractor was insured only for agriculture purpose. No risk premium was paid for those passengers. Insurer was held not to be liable to pay compensation. 7. In National Insurance Company Limited vs. V. Chinnamma and Others, supra, also the Supreme Court dealt with a case where a tractor trolley was used for transportation of vegetables and deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. It was held to be not an agriculture purpose and the decision of the Tribunal and the High Court holding the insurance company liable to pay the compensation for the deceased travelling in a tractor trolley along-with goods was reversed. 8. In view of the above discussion, I do not find any merit in this appeal and same is accordingly dismissed.