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2011 DIGILAW 2202 (RAJ)

Girraj @ Ganpat v. Rukmani

2011-10-13

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal is directed against the award of the learned Tribunal dated 27.7.2000 by which the learned Tribunal while allowing the claim petition of the respondent exonerated the insurance company from the liability. The appellant owner has come in appeal challenging that aspect of the award. 2. Shri M.R. Choudhary, learned counsel for the appellant has argued that the appellant is the owner as well as driver of the tractor. He was driving the tractor at a lower speed and that the deceased Ram Pal while sitting in the tractor, due to his own negligence fell down and his head dashed with the stone resulting into his death. There is no negligence on the part of the appellant. It was denied that there was any breach of policy. No doubt the tractor was insured for agriculture purposes but at the relevant time, it was used to construct the wall around the agriculture field and therefore this purpose would also be an agriculture purpose. Deceased Ram Pal was engaged as a Labourer, who possibly sit at the mudguard of the tractor and it cannot be inferred on that basis that the tractor was being used for commercial purposes. It is also been submitted that the widow of the deceased i.e. Rukmani-respondent No.1 had remarried 2-3 months after the date of accident and thereafter has given birth to two children. 3. Learned counsel for the appellant has argued that Ex.D/2 is captioned as "Commercial Vehicle Misc. Type Policy 'B'", which indicates that the policy that was issued to the appellant was for commercial use and mere writing the words "agriculture use" in the clause 'limitation as to use' of the insurance policy cannot put a bar for use of the vehicle for other purposes other than agriculture. Learned counsel in support of his arguments cited the India Motor Tariff, which is described as Tariff for Miscellaneous and Special Types of Vehicles and argued that there is no bar for use of the vehicle for hire or reward. Learned counsel in support of his arguments cited the judgment of Karnataka High Court in Mounesh vs. Thimmanna & Anr.- 2011 ACJ 2054 and Kerala High Court in Sulaiman vs. Alipa & Ors.-MACD 2011(2) (Ker.) 850. Learned counsel in support of his arguments cited the judgment of Karnataka High Court in Mounesh vs. Thimmanna & Anr.- 2011 ACJ 2054 and Kerala High Court in Sulaiman vs. Alipa & Ors.-MACD 2011(2) (Ker.) 850. He also argued that if the policy were to contain the words "agriculture use", the farmers' package policy should have been issued to the appellant and not the policy Ex.D2, which has been issued. 4. Shri Gaurav Jain, learned counsel for the insurance company has opposed the appeal and cited the judgment of Supreme Court in United India Insurance Co. Ltd. vs. Serjerao & Ors.- AIR 2008 SC 460 and judgment of this Court in the New India Assurance Co. Ltd. vs. Smt. Manwati & 14 Ors.-2003 WLC (Raj.) UC 442 and argued that if the insurance policy was issued only for agriculture purpose and no premium was paid for covering risk of passengers, there would be breach of conditions of insurance policy and therefore the liability cannot be fastened on the insurance company for payment. 5. Shri Naseemuddin Qazi, learned counsel for the claimant cited the judgment of this Court in Rajasthan State Road Transport Corporation & Ors. vs. Kiran Lata & Ors.-1993 ACJ 130 and argued that mere remarriage cannot be a reason to deny the compensation on that ground and that the question of remarriage does not come in any way either and compensation does not based on the possibility of remarriage, and therefore, the compensation has rightly been awarded to the claimants. 6. On hearing the learned counsel for the appellant and perused the impugned award, I find that the policy Ex.D2, which is on record clearly indicates that the insurance policy in column relating to 'limitation as to use' has specifically indicated the words "agriculture use". This policy is although accompanied by a proforma meant for Commercial Vehicles "B" Policy Miscellaneous Vehicles, but this is endorser of the policy and policy itself contains a stipulation to the effect that vehicle shall be used for only "agriculture purpose". This Court cannot merely on the basis of the India Motor Tariff or for that purpose the proforma of Farmers Package Policy proceed on the assumption that since the policy is accompanied by a proforma meant for Commercial Vehicles "B" Policy Miscellaneous Vehicles, therefore, it should be implied that the vehicle could also be used for commercial purpose. This Court cannot merely on the basis of the India Motor Tariff or for that purpose the proforma of Farmers Package Policy proceed on the assumption that since the policy is accompanied by a proforma meant for Commercial Vehicles "B" Policy Miscellaneous Vehicles, therefore, it should be implied that the vehicle could also be used for commercial purpose. When specific condition has been put in the policy itself as to its use, it is that purpose for which the entire policy can be taken to have been issued. The judgment of Supreme Court in Serjerao, supra and judgment of this Court in Smt. Manwati, supra are clear on this aspect where it has been held that if the tractor was insured for agriculture purpose and no premium was paid for covering risk of passengers for the death of persons travelling in that tractor, the insurance company cannot be held liable. 7. The judgment of Kerala High Court in Sulaiman, supra was arising out of the goods vehicles and cannot be applied to the present case. Similarly the judgment of Karnataka High Court in Mounesh, supra cannot be said as a good law in view of the judgment of Serjerao, supra. This Court in Chena Ram & Anr. vs. The Oriental Insurance Co. Ltd. & Ors., S.B. Civil Misc. Appeal No.563/2006 decided on 27.9.2011 = 2011(2) CCR 1275 (Raj.) has held that for the death of persons travelling in a trolley attached to the tractor, the insurance company cannot be held liable for compensation because the Tractor was insured only for agriculture purpose. In doing so, this Court also considered the judgment of Supreme Courtr in National Insurance Company Ltd. vs. V. Chinnamma & Ors.-2004 (3) TAC 577 (SC). That was 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 agriculture 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. 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 above, the argument of counsel for appellant that the widow has remarried and therefore could not be held for compensation under the head of marital life also cannot be accepted. 9. I do not find any merit in this appeal, which is accordingly dismissed. Record be sent back immediately.