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2011 DIGILAW 2535 (RAJ)

Gopal v. Narain @ Chandu

2011-11-22

MOHAMMAD RAFIQ

body2011
RAFIQ, J.—This appeal has been filed by the claimants-appellants against the award of the learned Motor Accident Claims Tribunal, Baran dated 8.10.2003 whereby the learned Tribunal has exonerated the insurance company from its liability and held the owner of the tractor responsible for making payment of compensation. The claim petition was filed for grant of compensation for death of Kamla Bai, wife of appellant No.1 and mother of appellant nos.2 to 5. She died in an accident which had taken place on 29.12.2001 while she was travelling in the trolley of the tractor No.RJ28-R-7042. The tractor was being driven by respondent No.1 under the employment of respondent nos.2 to 4. It was alleged that the driver was driving the tractor in a rash and negligent manner as a result of which the trolley turned turtled and she fell down and died. The learned Tribunal considering the fact that the tractor was insured only for agriculture purpose with the risk of the driver, exonerated the insurance company from its liability and held the owner liable for payment of compensation. 2. Ms. Manisha Surana, learned counsel for the claimants-appellants has argued that insurance company cannot be absolved of its liability because even if the trolley was not insured, the fact remains that the tractor so insured would cover the risk of the passengers being carried out in a trolley. It was argued that the insurance company was required to prove that the breach of condition was willful breach with the knowledge of the owner. If the owner was not aware that the driver was carrying the passengers in trolley, this cannot be accepted as a breach of condition so as to entitle the insurance company to disown the liability. 3. Learned counsel argued that the insurance company ought to have been required to make the compensation to the appellant, however, with right to recover the same from the owner of the vehicle. In support of her arguments, she relied on the judgment of Supreme 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). 4. 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). 4. Learned counsel also 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.). 5. Per contra, Shri Gaurav Jain, learned counsel for the respondent insurance company has opposed the appeal. In support of his contention, he relied on the judgment of Supreme Court in United India Insurance Co. Ltd. vs. Serjerao-MACD 2008 (SC) 33, Oriental Insurance Co. 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.). 6. I have given my thoughtful consideration to the rival arguments and perused the material on record. 7. As regards the judgments of Supreme Court in New India Insurance Company vs. Darshana Devi & Ors.-2008 (1) WLC (SC) Civil 509, 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) and judgment of this Court in New India Insurance Company vs. Sobharam & Ors.-2011 WLC (Raj.) 654 = 2011(1) CCR 585 (Raj.), the Supreme Court by invoking its extraordinary jurisdiction under Article 142 of the Constitution of India, directed the insurance company to pay compensation and recover the same from the owner of the vehicle without initiating any separate proceedings. Such power is not available to this Court. I do not find any merit in this appeal. The same is dismissed.