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Madhya Pradesh High Court · body

2013 DIGILAW 355 (MP)

Sonia Bai Gond v. Alok Panika

2013-03-15

M.C.GARG

body2013
JUDGMENT : This order shall dispose of the two appeals, one filed on behalf of the claimants/legal heirs of deceased Ramkaran, and another is the appeal filed by the Insurance Company. 2. Both the appeals are filed being aggrieved by the award dated 28-9-10 passed by Addl. Member of III Addl. Motor Accidents Claims Tribunal, Beohari, Distt. Shahdol in Claim Case No. 60/09, whereby the learned Tribunal has awarded a sum of? 3,75,000/- on account of death of Ramkaran Singh Gond, to the claimants who are the legal heirs of deceased Ramkaran Singh Gond and fastened the liability to pay the compensation against respondent No. 3-Insurance Company. 3. The claimants-legal heirs of the deceased have filed M.A. No. 4745/10 for enhancement of compensation, by submitting that the deceased was having daily income of Rs. 200/- beside annual agricultural income to the tune of Rs. 12,000/-. It is submitted that the amount awarded by the Tribunal is too less, which may be enhanced to Rs. 31,91,000/-. 4. So far as the Insurance Company is concerned, it has filed M.A. No. 794/11 for its exoneration from the liability to pay the compensation. It has been submitted that the offending tractor was insured for the agricultural purpose, but at the time of accident the same was being used by the owner for the purpose other than the agricultural. Thus, the terms and conditions of the insurance policy have been violated, therefore, the Insurance Company is not liable to-pay the compensation and the liability be fastened against the owner and driver. 5. I have heard the submission of both the parties. Firstly, I would like to deal with the contentions of the Insurance Company, that in the accident, the tractor was being used for non-agricultural purposes and therefore, the Insurance Company was not liable. In this case, the Tribunal framed issues. 6. It is not a disputed fact that the vehicle was insured for agricultural purposes. Here the question is as to whether the owner of the tractor was liable to compensate the third party, who were affected by the accident in question. The relevant facts which have been discussed by learned Tribunal in the impugned award are in Paragraphs 10 to 12, which read thus : - XXX XXX XXX 7. Here the question is as to whether the owner of the tractor was liable to compensate the third party, who were affected by the accident in question. The relevant facts which have been discussed by learned Tribunal in the impugned award are in Paragraphs 10 to 12, which read thus : - XXX XXX XXX 7. As far as the plea taken by the Insurance Company is concerned, it has been discussed in Paras 13 to 16 of the impugned award :- XXX XXX XXX 8. The discussion which appears from the aforesaid paragraphs shows that the finding recorded by the Tribunal is based on the assumption that the deceased was not travelling in the tractor at the time of accident, but was at the backside of the tractor; at the time when the tractor was coming reverse from high slope to down slope, the driver could not control the speed of it, therefore, the accident occurred and the deceased and injured suffered injuries due to negligence of the driver. The Tribunal decided issue No. 3 in favour of the driver and held Insurance Company liable by making following observation in Para 17 :- XXX XXX XXX 9. As far the Insurance Company is concerned, they are relying upon the following three judgments. Two judgments have been given by Shri Justice S.K. Gangele sitting in Gwalior Bench in the case of Nathusingh Kushwah and another Vs. Narayan Singh and others, 2010 ACJ 2749 and New India Assurance Co. Ltd. Vs. Soneram and others, 2010 ACJ 2680 . In both these judgments, the fact noticed by this Court while fastening the liability to pay the compensation on the Insurance Company, the Court came to a conclusion that at the time of accident the passengers were travelling on the mudguard of the tractor and such travelling was contrary to the insurance policy and its violation, therefore, the Insurance Company was exonerated. Third judgment which has been cited by the Insurance Company is given Full Bench of this Court in Bhav Singh Vs. Savirani and others, reported in 2008 (1) MPLJ 72 . It would be appropriate to take note of the observation made in the aforesaid judgment in Paras 5, 8 and 12, which read as under :- "5. Third judgment which has been cited by the Insurance Company is given Full Bench of this Court in Bhav Singh Vs. Savirani and others, reported in 2008 (1) MPLJ 72 . It would be appropriate to take note of the observation made in the aforesaid judgment in Paras 5, 8 and 12, which read as under :- "5. We find on a perusal of the decision of the Full bench in Jugal Kishore (supra), and particularly Paragraphs 17 and 18 of the judgment that the Full Bench has taken a view that the expression 'third party' would mean a party other than the contracting parties to the insurance policy and would include everyone, be it a person travelling in another vehicle, one walking on the road or a passenger in the vehicle itself which is the subject matter of the insurance policy. In a Full Bench judgment delivered by us in Smt. Sunita Lokhande and others Vs. The New India Assurance Co. Ltd. and others, ILR (2007) MP 1145, we have quoted Paragraph 17 of the judgment of the Full Bench in Jugal Kishore (supra) to hold that the insured who is a party to the insurance is not a third party for the purpose of Chapter XI of the Act, particularly Section 147 thereof. Thus, any person other than the insurer and the insured who are parties to the insurance policy is a 'third party'. The insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of Section 147 of the Act or under the terms and conditions of the policy of insurance. Hence, the mere fact that a passenger is a third party " would not fasten liability on the insurer unless such liability arises under Section 147 of the Act or under the terms and conditions of the insurance policy. 8. Similarly, an employee is a third party inasmuch as he is not a party to the insurance policy. Hence, the mere fact that a passenger is a third party " would not fasten liability on the insurer unless such liability arises under Section 147 of the Act or under the terms and conditions of the insurance policy. 8. Similarly, an employee is a third party inasmuch as he is not a party to the insurance policy. But merely because an employee is a third party, the Insurance Company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless Section 147 of the Act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. Section 147 (1) (b) of the Act provides that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. The Proviso to sub-section (1) of Section 147 of the Act, however, states that a policy shall not be required to cover liability other than the liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to any of the three categories of employees mentioned in sub-clauses (a), t (b) and (c) of clause (i) of the proviso-to sub-section (1) of Section 147 of the Act. Hence, even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of Section 147 of the Act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the Proviso to sub-section (1) of Section 147 of the Act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1) of Section 147 of the Act, the insurer is liable only for the liability under the Workmen's Compensation Act, 1923. 12. 12. Regarding the Division Bench judgment in Sarvanlal and others (supra), we find that the Division Bench has relied on not only the judgment of the Full Bench in Jugal Kishore (supra) but also clause (vii) of Rule 97 of the Motor Vehicles Rules, 1994 (for short 'the Rules of 1994') made by the State of M.P. So far as the judgment of the Full Bench in Jugal Kishore (supra), is concerned, we have already clarified the position of law. Regarding Clause (7) of Rule 97 of the Rules of 1994, we find that the Rules of 1994 have been made by the State of M.P. under Section 96 of the Act and in particular sub-section (2) (xxxi) which provides that without prejudice to the generality of the foregoing power, rules under Section 96 may be made with respect to the carriage of persons other than the driver in goods carriages. Section 96 is placed in Chapter V of the Act, which relates to 'Control of Transport Vehicles'. Sub-section (1) of Section 96 of the Act states that the State Government may make rules for the purpose of carrying into effect the provisions of Chapter V. Hence, Rule 97 of the Rules of 1994 has been made by the State Government to give effect to the provisions of Chapter V of the Act, which, as we have seen, relates to 'control of transport vehicles'. These rules obviously cannot have a bearing in interpreting the provisions of Chapter XI of the Act including Sections 145 and 147 of the Act. As we have indicated above, the liability of the insurer to indemnify the insured in respect of death or bodily injury suffered by a passenger or an employee would be covered by the provisions of Section 147 of the Act or the terms and conditions of the insurance policy. Thus, the decision of the Division Bench in Sarwan Lal (supra) in so far as it relies on Rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passenger does not lay down the correct law." 10. However, the aforesaid judgments are not applicable to this case in view of evidence, which has come on record and as has been discussed by the Tribunal in Paragraphs 10, 11, 12, 15, 16 and 17 of the award (supra). 11. However, the aforesaid judgments are not applicable to this case in view of evidence, which has come on record and as has been discussed by the Tribunal in Paragraphs 10, 11, 12, 15, 16 and 17 of the award (supra). 11. In the light of the discussion had above, it can simply be observed that considering the evidence, which has come on record, even if it is presumed that the tractor was used for the purpose other than agricultural at the time or prior to the incident, it cannot be said that the injuries were caused to the deceased injured while travelling in the tractor. The fact is that when the tractor was coming down to the lower slope from the higher slope the driver could not control the vehicle which resulted in the accident leading to death of Ramkaran. The injuries having being caused to the deceased by used of the tractor, the liability of Insurance Company would arise. 12. Section 147 of the Motor Vehicles Act is also reproduced hereinbelow for the sake of reference :- r "147. The injuries having being caused to the deceased by used of the tractor, the liability of Insurance Company would arise. 12. Section 147 of the Motor Vehicles Act is also reproduced hereinbelow for the sake of reference :- r "147. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place : Provided that a policy shall not be required,- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to. any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation :- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place." 13. It would not be out of rest to mention that the question regarding third party liability in cases where the accident caused injury arising out of the use of vehicle has been discussed by the Hon'ble Supreme Court in case of Kaushnuma Begum (Smt.) and others Vs. New India Assurance Co. Ltd. and others, reported in (2001) 2 Supreme Court Cases 9, where the Apex Court has held that the Motor Accidents Claims Tribunal has to decide the case on the basis of strict liability. The Court approved this principle in this judgment, the relevant discussion appears in Paras 11 to 19 :- "It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident Rs. This question depends upon how far the Rule in Rylands Vs. Fletcher (supra), can apply in motor accident cases. This question depends upon how far the Rule in Rylands Vs. Fletcher (supra), can apply in motor accident cases. The said Rule is summarised by Blackburn, J., thus: The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The House of Lords considered it and upheld the ratio with the following dictum:- We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if the does not do so, he is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists, here, it is unnecessary to inquire what excuse would be sufficient. The above Rule eventually gained approval in a large number of decisions rendered by Courts in England and abroad. Winfield on Tort has brought out even a chapter on the Rule in Rylands Vs. Fletcher. At Page 542 of the 15th Edn. of the calibrated work, the learned author has pointed out that over the years Rylands Vs. Fletcher has been applied to a remarkable variety of things : fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation. He has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands Vs. Fletcher. They are : (1) Consent of the plaintiff, i.e., volenti non-fitinjuria. He has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands Vs. Fletcher. They are : (1) Consent of the plaintiff, i.e., volenti non-fitinjuria. (2) Common benefit, i.e., where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape. (3) Act of stranger, i.e., if the escape was caused by the unforeseeable act of a stranger, the rules does not apply. (4) Exercise of Statut6ry Authority, i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise. (5) Act of God or vis major, i.e., circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility. (6) Default of the plaintiff, i.e., if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply. (7) Remoteness of consequences, i.e., the rule cannot be applied ad infinitum, because even according to the formulation to the rule made by Blackburn, J., the defendant is answerable only for all the damages which is the natural consequence of its escape. The Rule in Rylands Vs. Fletcher has been referred to by this Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, CJ., speaking for the Constitution Bench in M.C. Mehta and another Vs. Union of India and others, (1987) 1 SCC 395 , expressed the view that there is no necessity to bank on the Rule in Rylands Vs. Fletcher. What the learned Judge observed is this : We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. It is pertinent to point out that the Constitution Bench did not disapprove the Rule. On the contrary, learned Judges further said that we are certainly prepared to receive light from whatever source it comes. We no longer need the crutches of a foreign legal order. It is pertinent to point out that the Constitution Bench did not disapprove the Rule. On the contrary, learned Judges further said that we are certainly prepared to receive light from whatever source it comes. It means that the Constitution Bench did not foreclose the application of the Rule as a legal proposition. In Charon Lal Sahu Vs. Union of India, (1990) 1 SCC 613 , another Constitution Bench of this Court while dealing with Bhopal Gas Leak Disaster cases, made a reference to the earlier decisions in M. C. Mehta (supra), but did not take the same view. The rule of strict liability was found favour with. Yet another Constitution Bench in Union Carbide Corporation and others Vs. Union of India and others, (1991) 4 SCC 584 , referred to M.C. Mehta's decision, but did not detract from the Rule in Rylands Vs. Fletcher. In Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and another, (1987) 3 SCC 234 , the question considered was regarding the application of the Rule in cases arising out of motor accidents. The observation made by E.S. Venkataramiah, J. (as He then was) can profitably be extracted here : Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands Vs. Fletcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. Hit and run cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault. Like any other common law principle, which is acceptable to our jurisprudence, the Rule in Rylands Vs. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents." 14. Applying the principle laid down by the Apex Court clearly rules that in absence of any specific evidence led by the insurer that at the time of causing injury to third party, i.e., the deceased, the vehicle was being used for any purpose other than the purpose for which the vehicle was insured, which protects the Insurance Company from compensating the insured. The facts clearly reveals that deceased Ramkaran, who succumbed to the injuries caused to him when the tractor was coming down and he was standing on the backside of the tractor or injury is caused to the 3rd person because of the tractor. Thus, it is sufficient to hold that the owner was responsible for the injuries caused to deceased Ramkaran and consequently, the vehicle being insured, the liability fastened to the Insurance Company. In this case, the evidence as discussed above by the Tribunal clearly held that when the incident occurred, the insured were on the back side of the vehicle and it is on account of negligence or in having no control the tractor while it was coming down the incident has occurred. This principle of strict liability would apply as has been rightly applied by the Tribunal. 15. This principle of strict liability would apply as has been rightly applied by the Tribunal. 15. In this case, it is apparent that the injuries to the deceased have been caused by use of the vehicle which resulted in causing fatal injury to Ramkaran, and the insurer on account of the provisions contained in the Act liable to compensate the third person. The deceased now being represented by the appellant with respect to the death of Ramkaran and therefore, the liability in this case had arisen out of use of the vehicle according to Section 147 of the Act. Thus, the appeal filed by the Insurance Company does not survive and the same is hereby dismissed. 16. Now coming to the enhancement of compensation, the subject matter of M.A. No. 4745/10. It is found that on the basis of income, the Tribunal has discussed the issue of compensation in Paras 20, 21, 22 and 23 which read thus : - XXX XXX XXX 17. There is no evidence available on record that in addition to the income as determined by the Tribunal on the basis of the submission made by wife of the deceased, there was any other income available to the deceased which could have been taken into consideration for the purpose of deciding the issue of compensation. In view of aforesaid, there was no enhancement of compensation. However, in the award, there is no mention about the future prospects. Applying the principle laid down in the case of Sarla Verma and others Vs. Delhi Transport Corp. and another, 2009 ACJ 1298 , and the age of deceased at the time of accident and the claimants being the wife, minor children of the deceased, the future prospects are added for the purpose of compensation @ 30% of the assessed income. The annual income as assessed by the Tribunal is @ Rs. 22,500/- and 30% thereof is Rs. 6750/-. That is to say, it is held that the appellants would also be entitled to an additional amount of compensation, i.e., Rs. 6750 x 16 = 1,08,000/-. Thus, the amount of compensation is enhanced to Rs. 4,83,000/-. 18. The enhanced amount, i.e., Rs. 1,08,000/- shall be payable by the Insurance Company within one month from today @ interest of 7.5% per annum w.e.f. 29-6-2009. 6750 x 16 = 1,08,000/-. Thus, the amount of compensation is enhanced to Rs. 4,83,000/-. 18. The enhanced amount, i.e., Rs. 1,08,000/- shall be payable by the Insurance Company within one month from today @ interest of 7.5% per annum w.e.f. 29-6-2009. If the payment is not made within one month, then the entire enhanced amount shall be payable @ 12% per annum. Other terms and conditions of the award shall ipso facto apply on the enhanced portion of the award. With the aforesaid observations, both the appeals are disposed of.