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2011 DIGILAW 2449 (RAJ)

National Insurance Co. Ltd. v. Vimlesh

2011-11-15

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the appellant-National Insurance Company Ltd. against the award of the learned Motor Accident Claims Tribunal dated 6.5.2003 by which the claim petition filed by respondent-claimants was allowed and the claimants were granted compensation of Rs.11,34,620. 2. The claim petition was submitted by the claimant Smt. Vimlesh and seven others contending therein that deceased Kailash Chand was travelling in tractor No.RJ 25R-1281. The tractor was being driven by respondent No.1-Man Singh in a very high speed and in rash and negligent manner. A trolley was attached with the tractor. Kailsh Chand was in the trolley, which overturned, resulting into serious injuries to him. He died while he was being carried out to S.M.S. Hospital in a jeep. His age was 40 years. He was working as Manager, Gram Seva Sahakari Samiti. His monthly salary was Rs.3598/- with Rs.1200 per month towards incentives. The driver of the tractor i.e. Man Singh was in the employment of the owner-Kedar Singh. The insurance company contested the claim and maintained that the tractor was insured only for agriculture purpose and the risk of the passenger was not covered. The driver was also not having valid licence. The insurance company should therefore be absolved of its liability. The learned Tribunal allowed the claim petition in the manner indicated directing the insurance company to pay a compensation of Rs.11,34,620 to the claimants. Aggrieved thereby, the appellant-insurance company approached this Court by filing the instant appeal. 3. Shri S.R. Joshi, learned counsel for the appellant at the outset has invited attention of the Court towards Ex.4, copy of the insurance policy and statement of NAW-4 S.S. Jawa, the Administrative Officer of the Divisional Office, who has proved the fact that tractor was insured for agriculture use only with the risk of the driver alone. The deceased was travelling in the trolley attached with the tractor as a passenger and, therefore, his risk was not covered. The learned Tribunal has erred in law in holding the insurance company to indemnify the owner for payment of compensation. In support of his contention, learned counsel relied on the judgment of Supreme Court in United India Insurance Company Ltd. vs. Serjerao-MACD 2008 (SC) 33, Oriental Insurance Company Ltd. vs. Brij Mohan & Ors.-2007(3) TAC 20 (SC) = RLW 2007(4) SC 3013 and judgment of this Court in Chena Ram & Anr. In support of his contention, learned counsel relied on the judgment of Supreme Court in United India Insurance Company Ltd. vs. Serjerao-MACD 2008 (SC) 33, Oriental Insurance Company Ltd. vs. Brij Mohan & Ors.-2007(3) TAC 20 (SC) = RLW 2007(4) SC 3013 and judgment of this Court in Chena Ram & Anr. vs. The Oriental Insurance Company Ltd. & Ors., S.B. Civil Misc. Appeal No.563/2006 decided on 27.9.2011 = 2011(2) CCR 1275 (Raj.). 4. Per contra learned counsel for the respondents opposed the appeal and argued that the insurance company though has to be held liable to pay the compensation but shall recover the same from owner as held by the coordinate bench of this Court in New India Insurance Company vs. Sobharam & Ors.-2011 WLC (Raj.) 654 = 2011(1) CCR 585 (Raj.). Learned counsel submitted that the coordinate bench of this Court in holding so has relied on the judgment of Supreme Court in National insurance Co. Ltd. vs. Om Prakash & Ors.- 2005(8) RDD 3042 (Raj.) and National Insurance Company Ltd. vs. Chinnamma & Ors.-2004(3) TAC 577(SC). 5. Learned counsel also relied on the judgment of Supreme Court in Safiya Bee vs. Mohd. Vajahath Hussain @ Fasi-2011 AIR SCW 3880 and argued that in case of doubt or distinction about the decision of earlier bench, judicial proprietary demands that the matter be referred to the Larger Bench. 6. Learned counsel relied on the judgment of Supreme Court in New India Insurance Company vs. Darshana Devi & Ors.-2008(1) WLC (SC) Civil 509 and argued that in that case also the son of the owner was driving the tractor without licence and the deceased was traveling in the tractor. The Supreme Court directed the insurance company to pay the compensation and then recover the same from the owner. The similar view was reiterated by division bench judgment of this Court in New India Assurance Co. Ltd. vs. Dhanna & Ors.-2010(2) WLC (Raj.) 198 = 2010(1) CCR 243 (Raj.) = 2010(2) RLW 1336. 7. I have given my anxious consideration to the rival submissions and perused the material available on record. 8. The entire policy which is on record and which has been proved by witness NAW-4 S.S. Jawa clearly shows that the tractor was insured for agriculture purposes with the risk of driver alone. 7. I have given my anxious consideration to the rival submissions and perused the material available on record. 8. The entire policy which is on record and which has been proved by witness NAW-4 S.S. Jawa clearly shows that the tractor was insured for agriculture purposes with the risk of driver alone. It is not in dispute in the present case that the deceased was travelling in the trolley attached with the tractor. 9. 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. 10. 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. 11. 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. 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. 12. As regards the contention that matter ought to have been referred to the Larger Bench in view of the contrary view, as expressed in Safiya Bee, supra, in my view, has to be decided per incurium having decided the issue contrary to the binding pressure of the Supreme Court and I therefore do not deem it necessary to make a reference of this issue to the Larger Bench. 13. The appeal is accordingly allowed. Since the appeal succeeds on the first ground, the other grounds with regard to lack of driving licence need not be considered. The appellant insurance company is not held liable to pay the compensation.