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2011 DIGILAW 585 (MP)

NATIONAL INSURANCE CO. LTD. v. BABULAL

2011-05-10

P.K.JAISWAL

body2011
JUDGMENT : Jaiswal, J. Miscellaneous Appeal No. 2071 of 2004 is filed by the non-applicant No. 3, National Insurance Co. Ltd., being aggrieved by the award dated 30.4.2004, passed by Fifth Member, Motor Accidents Claims Tribunal (Fast Track Court), Ratlam, in Claim Case No. 14 of 2003, by which the Claims Tribunal awarded a sum of Rs. 1,80,000 as compensation for the injuries to the claimant-injured Babulal and directed the non-applicant No. 3, National Insurance Co. Ltd. and non-applicant No. 5, New India Assurance Co. Ltd., to pay the amount of compensation. This order shall also govern the disposal of Miscellaneous Appeal No. 457 of 2005, filed by the non-applicant No. 5, New India Assurance Co. Ltd. The only question involved in these two appeals is about the liability of the insurance companies. 2. From the perusal of the facts of the case, it appears that on the date of accident, respondent No.1 Babulal alias Babu was travelling in a tractor-trolley bearing registration No. MP 13-3387 and MP 13-KA 8599 respectively. The said tractor-trolley was carrying wheat. The respondent No. 1 Babulal was travelling in the trolley. The driver of the tractor-trolley, the respondent No. 3, drove the said tractor rashly and negligently, due to which tractor-trolley overturned. Respondent No. 1, who was sitting along with other labourers, sustained grievous injuries. It is alleged that on the date of accident, i.e., in the intervening night of 1/2.5.1999, Babulal was sitting in the trolley along with wheat and was going to market for selling the said wheat. 3. The respondent No. 1 filed a claim petition seeking compensation against the owner, driver and the insurance companies of the tractor-trolley for the personal injuries sustained in the accident that occurred in the intervening night of 1/2.5.1999. According to the averments made in the claim petition, on the fateful day respondent No.1 was travelling in the trolley as a labourer. The tractor was insured with National Insurance Co. Ltd. The accident occurred due to rashness and negligence on the part of the driver and, therefore, owner, driver and the insurance companies are jointly and severally liable to pay compensation. 4. By the impugned award the Claims Tribunal has allowed the application filed by the claimant-respondent No. 1 herein and awarded jointly and severally compensation of Rs. 1,80,000 against the owner, driver and the insurance companies of the tractor-trolley. 5. 4. By the impugned award the Claims Tribunal has allowed the application filed by the claimant-respondent No. 1 herein and awarded jointly and severally compensation of Rs. 1,80,000 against the owner, driver and the insurance companies of the tractor-trolley. 5. According to the claimant he took his companion labourers to village Bhatpachlana for cutting (harvesting) wheat crop. Tractor No. MP 13-3387 belonging to Vikram Singh was taken for carrying/ transporting the wheat, which was being driven by Man Singh, respondent No. 3. The said trolley belonged to Shailendra Singh, respondent No. 4 and was insured with New India Assurance Co. Ltd. It was taken on hire by Chandrabhan Singh, respondent No. 2. 6. The respondent No. 2, owner of the tractor, denied the allegation made in the claim application. The insurance company denied their liability on the ground that the driver was not having an effective driving licence and the vehicle was being used contrary to the policy conditions. It was also contended that the vehicle was insured for agricultural purpose with them whereas the vehicle was being used for carrying passengers and for hire and carrying goods. The respondent No. 5 further denied that the trolley was insured with them. 7. The Tribunal, after appreciating the evidence on record, came to the conclusion that the trolley was not insured with New India Assurance Co. Ltd., respondent No. 5 (in para 33 of the impugned award), but awarded jointly and severally compensation of Rs. 1,80,000 against owner, driver and insurance companies of the tractor and trolley. At the time of accident the tractor bearing registration No. MP 13-3387 was insured with National Insurance Co. Ltd. 8. As per statement of claimant Babulal the trolley bearing the registration No. MP 13-KA 8599 was loaded with wheat bags and started from Bhatpachlana. The said trolley belongs to the non-applicant No. 4, Shailendra Singh. It was taken on hire by non-applicant No. 1, Chandrabhan Singh. This witness in his cross-examination has deposed that at the time of accident he was not working with Chandrabhan Singh and was working with one Bherulal. He has further deposed that his work was loading and unloading of tractor and was going from village Bhatpachlana to village Bamniya along with wheat owned by the labourers. This witness in his cross-examination has deposed that at the time of accident he was not working with Chandrabhan Singh and was working with one Bherulal. He has further deposed that his work was loading and unloading of tractor and was going from village Bhatpachlana to village Bamniya along with wheat owned by the labourers. Chandrabhan Singh in his statement has deposed that the appellant and other persons were working as labourers in the tractor and they loaded the wheat from village Bhatpachlana for its transportation to Ratlam Mandi. It has also come on record that the tractor-trolley was taken on hire. The fare of the persons who were travelling in the tractor-trolley was also received and charges for transportation of wheat, which is an agricultural produce, were also paid by the persons who were travelling in the trolley. The learned Tribunal came to the conclusion that at the time of accident the tractor-trolley was transporting agricultural produce. Learned Tribunal gave a finding that the tractor-trolley was insured only for agricultural purpose and at the time of accident it was carrying agricultural produce for sale in the market which will amount to agricultural purpose and held that both the insurance companies, owner and driver are jointly and severally liable to pay compensation. 9. Learned counsel for the insurance companies invited attention of this court to the insurance policy, which says that the tractor was insured only for agricultural purpose and not for any other purpose. 10. Now, the question involved in this appeal is whether carrying of wheat (agricultural produce) for sale in the market will amount to agricultural purpose? 11. Learned counsel for the insurance companies invited attention of this court to the judgment of the Apex Court in the case of National Insurance Co. Ltd. Vs. V. Chinnamma and Others, (2004) 8 SCC 697 . In that case, the deceased was travelling in a tractor along with bags of vegetables. Accident in that case occurred in 1991 and the question before the Supreme Court was whether the said purpose is covered by the term 'agricultural purpose'. In that case the Supreme Court relying on earlier judgments in the cases of New India Assurance Co. Ltd. Vs. Asha Rani and Others, (2003) 3 SCC 223 ; New India Assurance Company Vs. Accident in that case occurred in 1991 and the question before the Supreme Court was whether the said purpose is covered by the term 'agricultural purpose'. In that case the Supreme Court relying on earlier judgments in the cases of New India Assurance Co. Ltd. Vs. Asha Rani and Others, (2003) 3 SCC 223 ; New India Assurance Company Vs. Shri Satpal Singh and Others, (2000) 1 SCC 237 , and other cases, had negatived the contention of the claimant that the deceased was also travelling along with bags of vegetables purchased by him and was transporting them to market for sale as an agricultural produce. 12. In the present case, two sets of evidence have come on record. As per version of claimant, at the time of accident he was under the employment of Bherulal, working as labourer and was travelling in the trolley along with 22 bags of wheat for carrying it to village Bamnia. As per his version the wheat was owned by the labourers. The version of Chandrabhan Singh, owner of the tractor, is that at the time of accident tractor-trolley was carrying wheat, which is an agricultural produce and was being transported from Bhatpachlana to Ratlam Mandi market for sale as an agricultural produce. 13. Mr. S.V. Dandwate, learned counsel for New India Assurance Co. Ltd., invited my attention to the findings recorded by the Claims Tribunal and submitted that there is no finding that the trolley was insured nor there is any finding that New India Assurance Co. Ltd. was involved in any way, but in para 33 of the award the learned Tribunal gave a finding that New India Assurance Co. Ltd. is also liable to indemnify the award along with insurer of tractor, owner and driver of the vehicle. 14. In the case of National Insurance Co. Ltd. Vs. V. Chinnamma and Others, (2004) 8 SCC 697 , the Apex Court held : (15) A tractor fitted with a trailer may or may not answer the definition of 'goods carriage' contained in section 2 (14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. The 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. Tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the 'goods carriage' as contained in section 2 (14) of Motor Vehicles Act, the case would be covered by the decision of this court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, (2003) 3 SCC 223, and other decisions following the same, as the accident had taken place on 24.11.1991, i.e., much prior to coming into force of 1994 amendment. 15. On the other hand, learned counsel for the claimant and owner of the offending vehicle drew my attention to various paras of the impugned award and submitted that as per statements of Babulal, Gopal and Chandrabhan Singh the claimant was travelling along with agricultural produce, the learned Tribunal has not committed any legal error in holding that the insurance companies are liable to pay the amount of compensation. It was contended that carrying of agricultural produce in a tractor-trolley owned by the labourer/owner of the tractor would be for transporting them to market for sale will amount to agricultural purpose and both the insurance companies are rightly held liable to pay compensation. In the case of National Insurance Co. Ltd. Vs. V. Chinnamma and Others, (2004) 8 SCC 697 , the Apex Court held that the use of tractor for agricultural purposes would not be considered to mean that tractor-trolley can be used for carriage of goods by another person for its business activities and held that the vehicle was not being used for agricultural purpose. Ltd. Vs. V. Chinnamma and Others, (2004) 8 SCC 697 , the Apex Court held that the use of tractor for agricultural purposes would not be considered to mean that tractor-trolley can be used for carriage of goods by another person for its business activities and held that the vehicle was not being used for agricultural purpose. The tractor was meant to be used for agricultural purpose. The decision in National Insurance Co. Ltd. v. V. Chinnamma (supra) is fully applicable in the present facts and circumstances of the case. 16. In view of the aforesaid, in the present case, it cannot be said that the injured was travelling in the tractor for agricultural purpose and, as such the insurance company is not liable and it is only respondent Nos. 2, 3 and 4, owner and driver of tractor and trolley in question, who are liable to pay the compensation. 17. From the perusal of the facts of the case it appears that the insurance company was granted stay in the present case subject to depositing 50 per cent of the amount of award with proportionate interest and costs and there was conditional order against the respondent No. 1-claimant for withdrawal of the said amount. The respondent No. 1-claimant had been permitted to withdraw the amount subject to furnishing adequate security to the satisfaction of the Claims Tribunal. The said conditional order was passed in Miscellaneous Appeal No. 2071 of 2004, filed by National Insurance Co. Ltd. The said order was passed on 15.2.2005 and in the meantime, the amount must have been withdrawn by the respondent No. 1-claimant on furnishing security to the satisfaction of the Claims Tribunal. In such circumstances, respondent No. 1-claimant is directed to deposit the said amount within 10 weeks from the date of order, which is recoverable from the owner and driver of the tractor and trolley. Thus, it is directed that the amount deposited by National Insurance Co. Ltd. in pursuance to the interim order passed by this court shall be recovered by the insurance company from the claimant, which is ultimately liable to be payable by the owner and driver of the tractor and trolley. The claimants are directed to recover the whole amount of compensation from the owner and driver of the tractor and trolley. In the result, both the miscellaneous appeals filed by the insurance companies are allowed. No costs.