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Madhya Pradesh High Court · body

2015 DIGILAW 966 (MP)

Sharda Prasad Bais v. Amrouti

2015-09-11

N.K.GUPTA

body2015
ORDER : N.K. Gupta, J. The appellants being driver and owner of the vehicle involved in the accident have preferred the present appeal being aggrieved with the award dated 4.11.2004 passed in Claim Case No. 165 of 2003 passed by MACT, Sidhi wherein, a compensation of Rs. 1,37,000 along with interest was granted in favour of the respondent Nos. 1, 2 and 3 and the respondent No. 4 being Insurance Company was found absolved from its liability. 2. The facts of the case in short are that the respondents Nos. 1, 2 and 3 have moved a compensation application under Section 166 of the Motor Vehicles Act, 1988 (in short the M.V Act) that on 13.8.2003 Janki @ Matar Kol was working in the fields of the appellant No. 1 Sharda Prasad. Some cow dung fertilizer was under transportation from Khirwa Hill to the field of the appellant No. 1 by a tractor trolley. Registration number of tractor was MP-53M/0563 whereas, registration number of the trolley was MP-53M/0564. The tractor was driven by the appellant No. 2 Ramchandra in excessive speed and also in a negligent manner. Near the turn of Village Piparkhard, Janki @ Matar Kol fell down from the tractor and wheel of the trolley was rolled over upon him. Due to such accident he died while he was taken to the hospital. The FIR was lodged by Suresh Kumar son of Janki @ Matar Kol who was residing separately. The respondent Nos. 1, 2 and 3/claimants being widow and children of the deceased Janki @ Matar Kol have filed the claim application after computation of the claim and pleaded the liability of the non-applicants. Therefore, a claim application for compensation of Rs. 3,27,600 was moved before the Claims Tribunal. 3. The appellants Nos. 1 and 2/non-applicant Nos. 1 and 2 in their written statement denied the pleadings of the claimants. According to them the cow dung fertilizer was transported from Khirwa Hill to the field of the appellant No. 1 at Village Piparkhard and the deceased was also engaged along with the other labours to fill up the fertilizer in the trolley and to unload the same at the field. There was no negligence of the appellant No. 2/non-applicant No. 2 in the accident. There was no negligence of the appellant No. 2/non-applicant No. 2 in the accident. The deceased suddenly fell down from the tractor and it was a sudden accident so that before the appellant No. 2 could stop the tractor, the wheel of trolley was already rolled over upon the deceased. It is pleaded that the tractor and trolley were insured with the respondent No. 4/non-applicant No. 3. The Oriental Insurance Company with a comprehensive policy with cover of 6 labours and, therefore, the Insurance Company was responsible for payment of the claim. 4. The respondent No. 4/non-applicant No. 3 the Insurance Company in its written statement denied the claim application filed by the respondent Nos. 1, 2 and 3. It was specifically pleaded that the tractor was being driven in violation of the policy conditions. No person was permitted to travel in the trolley and therefore, Insurance Company was not liable for payment of compensation. 5. The Claims Tribunal has framed as many as seven issues relating to negligence, insurance of the vehicle, violation of the policy conditions and computation of the compensation amount. After recording of the evidence a compensation application of the respondents Nos. 1, 2 and 3 as mentioned above was accepted but the Tribunal found that the deceased was travelling in the tractor trolley in contravention to the policy conditions and, therefore, the respondent No. 4/Insurance Company was found absolved. 6. I have heard the learned Counsel for the parties. 7. The appellants have challenged the award passed by the Tribunal on all the counts that is point of negligence, quantum of compensation and liability of the Insurance Company. So far as the negligence is concerned, it is an admitted fact that the tractor trolley was deployed to bring cow dung fertilizer from Khirwa Hill to the field of the appellant No. 1. According to the eye-witness Smt. Devmati (PW2), the deceased was sitting on the tractor and in a ditch the tractor trolley jumped and he fell down on the road and the wheel of the trolley was rolled over upon the deceased Janki @ Matar Kol. The appellant Ramchandra (NA W2) has stated that the deceased Janki @ Matar Kol sat on the tractor trolley without holding any portion of the trolley and due to his own negligence he fell down on the ground and the wheel of the trolley was rolled upon him. The appellant Ramchandra (NA W2) has stated that the deceased Janki @ Matar Kol sat on the tractor trolley without holding any portion of the trolley and due to his own negligence he fell down on the ground and the wheel of the trolley was rolled upon him. If the entire evidence given by these witnesses is minutely considered then it would be apparent from the statement of Ramchandra that there was no seat available either in the tractor or trolley for any other person except the driver and therefore, it was not expected from any one to sit on the mudguard of the tractor or on the core of the trolley. The appellant Ramchandra had permitted the deceased Janki @ Matar Kol to sit at a place on the tractor which was not meant for sitting and therefore, it cannot be said that the deceased did not hold any portion of the tractor or trolley in a proper manner and, therefore, he fell down from the tractor or trolley. Hence, it is apparent that the appellant No. 2 directed the deceased Janki to sit at such a place on the trolley or tractor which was not meant for sitting and this was the gross negligence of the appellant No. 2. 8. Secondly, looking to the facts and circumstances of the case doctrine of res ipsa locuitur be applied and it is also apparent that when the deceased Janki fell down from the tractor the appellant No. 2 could not stop the tractor and the wheel of the trolley was rolled over upon the deceased Janki. Hence, it is not a case of contributory negligence. The Tribunal has rightly held that the applicant No. 1 was solely negligent in causing the accident. 9. The learned Counsel for the appellants have placed his reliance upon the judgment passed by the Apex Court in the case of Kishan Gopal and Another v. Lal and Others, III (2013) ACC 878 (SC) : X (2014) SLT 458 : 2013 ACJ 2594 . In the light of that judgment the view taken by the Tribunal relating to negligence of the driver is also confirmed. Hence, there is no need to make any interference in the view taken by the Tribunal about the rash and negligent driving of the appellant No. 2. 10. In the light of that judgment the view taken by the Tribunal relating to negligence of the driver is also confirmed. Hence, there is no need to make any interference in the view taken by the Tribunal about the rash and negligent driving of the appellant No. 2. 10. So far as the quantum of compensation is concerned, the Tribunal has computed the compensation according to the multiplier system. The notional income of the deceased was computed and thereafter, multiplier of 13 was given. It was proved before the Tribunal that the age of the deceased was 50 years. The Tribunal found the average income of the deceased being an unskilled labour as Rs. 50 per day and, thereafter, a deduction of ?rd amount was made on his total income to get the dependency of the claimants and the multiplier of 13 was given. The principles for computation of compensation is concerned is given in Sarla Verma's case III (2009) ACC 708 (SC) : VI (2009) SLT 663 : 162 (2009) DLT 278 (SC) : ( 2009 ACJ 1298 ) and the computation done by the Tribunal is according to such principles and therefore, it cannot be said that an excessive compensation has been granted by the Tribunal. 11. The main issue in the case was as to whether the Insurance Company was liable to pay the compensation. According to the learned Counsel for the appellants the insurance policy was a comprehensive policy and tractor was not used for commercial purposes. Hence the Insurance Company was liable for payment of compensation. In this context the judgment passed by the Division Bench of Allahabad High Court in the case of United India Insurance Co. Ltd. v. Aliya Begum and Others, IV (2013) ACC 13A (CN) : 2013 ACJ 2024 , has been referred. However, in that judgment there was no evidence that the deceased travelled as a gratuitous passenger and also in that case the tractor was used without any trolley. On the other hand the learned Counsel for the respondent No. 4 has submitted that the tractor was driven in violation of policy conditions. No insurance was done for any labour or passenger. On the other hand the learned Counsel for the respondent No. 4 has submitted that the tractor was driven in violation of policy conditions. No insurance was done for any labour or passenger. The learned Counsel for the respondent No. 4 has placed the reliance upon the judgment passed by the Apex Court in the case of Mithlesh and Others v. Brijendra Singh Baghel and Others, III (2007) ACC 248 (DB) : 2007 ACJ 10 and New India Assurance Co. Ltd. v. Vedwati and Others, III (2007) SLT 338 : 1 (2007) ACC 924 (SC) : 2007 ACJ 10 43. 12. In the case of Vedwati (supra), it is held by the Apex Court that Insurance Company was not liable to cover the policy for a passenger travelling in the Goods Vehicle and hence if someone was found in the Goods Vehicle then Insurance Company was not liable. In the present case the vehicle is not a Goods Vehicle but the principle applicable in the present case is same. In the case of Mithlesh (supra), a person travelling on a mudguard of tractor attached to trolley, it was found that there was a breach of policy conditions and hence the Insurance Company was exempted from its liability. If the facts of the present case are considered in the light of the aforesaid judgments of the Apex Court then it would be apparent that the claimants have pleaded that as the deceased was seated on a mudguard and after his fall the wheel of the trolley was rolled over upon him. The appellants in their written statements have stated that all the four labours were seated in the trolley. Though it was not made clear in the statement of the eye-witnesses of both the sides, but, it is clear that there was no seat provided in the trolley for sitting of the labour and, therefore, it cannot be said that the deceased was travelling in the trolley according to the policy conditions. It is also true that the vehicle was used for agriculture purposes because the cow dung fertilizer was to be taken from Khirwa Hill to the field of the appellant No. 1 and, therefore, the transportation of the fertilizer shall be considered as a part of agricultural activity. 13. It is also true that the vehicle was used for agriculture purposes because the cow dung fertilizer was to be taken from Khirwa Hill to the field of the appellant No. 1 and, therefore, the transportation of the fertilizer shall be considered as a part of agricultural activity. 13. However, for transportation of cow dung fertilizer it was sufficient for the appellants that the fertilizer would be loaded in the trolley from the place where it was prepared and, thereafter, it could be unloaded at the field of the appellant No. 1. There was no need for a person to travel in the tractor trolley who is required for loading or unloading of the fertilizer. The appellant No. 1 would have engaged some labours to load the fertilizer at Khirwa Hill and he would have engaged some labours at his field to unload the fertilizer. Hence, if he directed the labours to travel in the trolley then travelling of such labours is not a part of agricultural activity. It was specifically pleaded by the appellants that the insurance of tractor trolley was obtained in which the risk of six labours was covered in the policy. If there was a specific pleading done by the appellants then it was for them to prove that labour travelling in the trolley was covered in the policy obtained by the appellant No. 1. The appellant Nos. 1 and 2 did not file the policy to show the exact condition of the Insurance Policy. The cover note Ex. D/3 has been filed to show that the appellant No. 1 had paid a huge premium on various heads. 14. Nandkumar (NA3W1) has proved the policy schedule Ex. D/4 in which he has stated that the comprehensive insurance of tractor and trolley was done which includes damage to the vehicle and trolley due to any reason including fire or on theft. The learned Counsel for the appellants have specifically asked about the detail of the premium paid by the appellant No. 1 to the Insurance Company in which he has made clear that a premium of Rs. 100 was given for covering the insurance of the owner of the vehicle if he dies in an accident. Similarly, the premium of Rs. 25 was taken for covering the risk of the death of the driver during an accident. 100 was given for covering the insurance of the owner of the vehicle if he dies in an accident. Similarly, the premium of Rs. 25 was taken for covering the risk of the death of the driver during an accident. However, no question was asked to the witness Nandkumar to show that premium was paid by the appellant No. 1 towards the insurance of six labours who can travel in tire trolley. Hence, the appellant No. 1 could not prove its pleading before the Tribunal. He claimed that vehicle was insured for six labours who could travel in the trolley but, the policy Ex. D/4 is proved by Nandkumar. No such premium was found paid by the appellant No. 1 for covering such insurance of labours. When any transportation of goods is expected while using a tractor trolley for agricultural purposed and, therefore, the appellant No. 1 did not pay any extra premium for the labours who could travel in the trolley along with the goods loaded in the trolley because for agricultural purposes such type of transportation of labours along with the goods was not at all required. Hence, the appellant No. 1 could not prove that he gave any additional premium to insurer for transportation of labours. 15. As discussed above the tractor or trolley were not meant to transport the passengers (labours) and there was a single seat on the tractor for the driver and, therefore, neither in comprehensive policy, it can be said that it is issued for travelling of the persons in the tractor trolley nor the appellant No. 1 had paid any extra premium to cover such a special risk. He could engage few labours at Khirwa Hill to load the cow dung fertilizer and some labours could be engaged at the field to unload the same. It was not expected from the appellant No. 1 to direct the workers to travel in the tractor trolley during the transportation of the fertilizer. Hence, in the light of the judgments passed by the Apex Court in the case of Mithlesh (supra), the Tribunal has rightly found that the tractor trolley was driven, especially when travelling of the deceased and other labours was not permitted in that tractor trolley, in violation to the policy conditions and, therefore, the Insurance Company was not liable to pay any compensation. The Tribunal has rightly absolved the Insurance Company to pay the compensation. 16. The learned Counsel for the appellants have also cited a judgment passed by the Single Bench of this Court in the case of Mankeenwar v. Chairman and Another" 2010 (2) MPLJ 536 . That judgment relates to the provisions of Public Liability Insurance Act. It was not pleaded by the appellants that the provisions of such act were applicable in the present case and it could not be established by the learned Counsel for the appellants that such act is applicable in the present case. Hence, the present case cannot be considered under the Public Liability Insurance Act and, hence, the order passed by the Single Bench of this Court cannot be applied in the present case. 17. On the basis of the aforesaid discussion, the appellant could not prove any of the point raised in the appeal. It is established that the Tribunal has rightly awarded compensation to the respondent Nos. 1, 2 and 3 and absolved the respondent No. 4 from its liability. Hence, there is no reason to accept the appeal filed by the appellants. Consequently it is hereby dismissed with costs. The respondents would be entitled to get the costs of this appeal from the appellants, Advocate's fee may be added in memo of cost as a sum of Rs. 5000 for each of the set of respondents if certified. 18. Copy of the order be sent to the Tribunal below along with its record for information and compliance.