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2016 DIGILAW 698 (ALL)

Ram Baksh Singh v. Geeta Devi

2016-02-26

SHABIHUL HASNAIN

body2016
JUDGMENT Shabihul Hasnain, J. This Appeal has been preferred against the judgment and award dated 16.10.2012, in Motor Accident Claim Petition No. 26 of 2011 (Smt. Geeta Devi and others v. Pankaj Singh and others), passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 2, Lakhimpur Kheri. 2. Heard Sri P.N. Dwivedi, learned counsel for appellants and Sri Jitendra Narain Mishra, for Insurance Company and gone through the record. 3. In nutshell, the facts giving rise to this appeal are that an accident took place on 13.12.2010 when the deceased, Ram Jiwan was coming back on a bicycle from Rajapur along with his brother-in law, Sarvesh with some materials for use in agriculture, when they reached near Kakarhwa sugarcane centre, the Tractor 555 Arjun, Registration No.31F2365 fitted with a Trolley loaded with sugarcane allegedly hit the deceased and he breathed his last on the spot. The FIR was lodged by the wife of the deceased, opposite party no.1, Smt.Geeta Devi. 4. The respondents/claimants filed the aforesaid claim petition in which the driver of the tractor was arrayed as opposite party no.1, opposite party nos. 2 & 3 as owners of the tractors and opposite party no.4 is Insurance Company. Opposite party no.1 did not contest the claim petition and no written statement was filed on his behalf, whereas respondent nos. 2 & 3 filed joint written statement alleging that no incident took place from the alleged tractor and even if it is found proved, the responsibility lies with opposite party no.4, the Insurance company, for awarding compensation. 5. Opposite party no.4 of the claim petition filed written statement alleging that claimants have not come before the court with clean hands. At the time of accident, the driver of the alleged tractor was not having valid licence; the tractor involved in the incident was not having fitness certificate, route permit, registration certificate along with other legally required documents. No information has been furnished about the incident by the owner of the tractor to the insurance company; the claimants are not dependents of the deceased; the trolley attached with the tractor was not insured and thus was unregistered and its use was being done against the policy conditions. 6. No information has been furnished about the incident by the owner of the tractor to the insurance company; the claimants are not dependents of the deceased; the trolley attached with the tractor was not insured and thus was unregistered and its use was being done against the policy conditions. 6. After hearing the counsel for the rival parties, the Motor Accident Claim Tribunal by the impugned order fixed the liability of payment of compensation to the victim on the owner of the vehicle, who have brought this First Appeal From Order challenging this liability. According to them the Tractor was fully insured and the Driver had a valid license. It appears that the lower Court below has been swayed by the fact that the Tractor at the time of accident was fitted with the Trolley also. The said Trolley was carrying sugarcane, which was being transported through the Tractor. 7. The lower Court below had made five points for determination, the decision on the fourth point has become crucial for the purpose of this appeal. Question no.4 is to the following effect : "Whether the Tractor was being deployed under the terms of agreement with the Insurance Company at the time of accident or not ?" 8. Learned counsel for Insurance Company had argued that the Tractor in question was not being run according to the terms and conditions mentioned in the insurance policy. He says that the insurance policy only mentions the word 'Tractor' and does not include the 'Trolley' with the Tractor. Further, the Trolley was not insured with the Insurance Company, hence the liability to pay compensation will lie only if the Tractor was being used independent of Trolley. It has also been argued that if the Trolley is being used for any purpose, other than 'agricultural purposes', it will be taken to be a goods vehicle, which will not be covered by the simple policy covering the Tractor alone. 9. Undisputedly the accident took place by the Tractor at the time when the Trolley was definitely attached to the Tractor. It is also not disputed that the Trolley was loaded with sugarcane. Presence of Pankaj Singh, Driver of the Tractor, is also not disputed. 10. 9. Undisputedly the accident took place by the Tractor at the time when the Trolley was definitely attached to the Tractor. It is also not disputed that the Trolley was loaded with sugarcane. Presence of Pankaj Singh, Driver of the Tractor, is also not disputed. 10. The Court below was persuaded by the counsel for the Insurance Company that a Tractor fitted with the Trolley carrying sugarcane will come within the definition of a 'transport vehicle' and carrying of sugarcane will not be treated to mean 'agricultural purposes', hence the lower court ruled that at the time of accident the Tractor was being run in contravention of the terms and conditions of the insurance policy and the responsibility of compensation will only lie on the owner of the Tractor. The order has been fortified by an endorsement in the insurance policy to the effect that in case Trolley is being used for some other purposes, except the agricultural purpose, then Insurance Company will not be liable to pay compensation. The lower court found support from the judgment of the Supreme Court in the case reported in 2006 ACJ 1 Vol. 1 (Natwar Parikh & Co. Limited v. State of Karnataka. This argument has been forcefully refuted by the appellant. 11. Learned counsel for appellants submits that the driver was driving the tractor with utmost care and caution as it was ladden with sugarcane of the owners' field. The deceased appears to have been riding his bicycle in a Zigzag manner carelessly and came in front of the tractor. No eye witness has commented upon the style of riding the bicycle by the deceased and FIR was lodged not by any eyewitness. He further stated that the accident took place by Tractor and not by Trolley, which was insured at the material time. It was being used for agricultural purpose taking sugarcane to the purchase centre. The towing of trolley is incidental to the use of tractor for agriculture purpose. It is submitted that the use of Trolley is neither a fundamental breach of the condition nor does it have any proximate or direct connection with accident on the basis of which the insurers are trying to repudiate the genuine claim for which they are solely responsible and liable to pay the compensation to the third party. 12. It is submitted that the use of Trolley is neither a fundamental breach of the condition nor does it have any proximate or direct connection with accident on the basis of which the insurers are trying to repudiate the genuine claim for which they are solely responsible and liable to pay the compensation to the third party. 12. Learned counsel for appellants further submits that the learned Motor Accident Claim Tribunal has adjudicated upon the claim in absence of any solid evidence and the award is wholly perverse, based on hearsay narrations. The insurers totally failed to discharge their burden of proving by producing unimpeachable, incontrovertible and cogent evidences properly, satisfactorily and convincingly that there was a violation of the terms of the policy and the Tractor was being used for commercial purpose. They could not produce any cogent evidence to prove that it was not the sugarcane of the owner appellants and some rental or reward was charged. The towing of trailer per se will not be treated that it was a 'goods-carrier' or it was being used for commercial purpose. It depends upon its purpose of use of Tractor at the material time. 13. Learned counsel for appellants further submits that their Lordships of Hon'ble Supreme Court have held the liability to pay compensation to victim can almost invariably be passed on the insurers unless the owner of the vehicle causing accident is guilty of some flagrant violation of law. Thus, the burden of payment of compensation has wrongly been shifted on the shoulders of the owners of the tractor. 14. He further submits that the tractor simply provides propulsion force for movement i.e. pull and push. It will become a motor only when a trailer is attached to it. The various acts of agriculture are carried out with the help of tractors. The scope of the term 'agricultural purpose' has been expanded to cover several activities within its ambit. The tractor registered for 'agricultural purpose' is not confined merely to carrying of manure, fertilizers, seeds and crops but other things also related to agriculture are covered. There was nothing on record to show that tractor was being used for commercial purpose other than agricultural purpose i.e. for hire, rental or for reward purpose or for any remuneration. 15. The tractor registered for 'agricultural purpose' is not confined merely to carrying of manure, fertilizers, seeds and crops but other things also related to agriculture are covered. There was nothing on record to show that tractor was being used for commercial purpose other than agricultural purpose i.e. for hire, rental or for reward purpose or for any remuneration. 15. Learned counsel for appellants has relied upon a Division Bench judgment of this Court in the case of Deepak Varma and another v. Ramdhari and others, (2013) 31 LCD 652 , relevant paras 8 & 9 of which are quoted as under : "8. Admittedly, tractor was registered for agricultural purpose. The owner of the tractor have right to use the tractor to construct from to keep the agricultural equipments Using the tractor to carry sand and other materials for construction of room to keep agricultural equipments cannot be held to be commercial purpose. The tractor registered for agricultural (purpose) means not only to carry manure, fertilizers or agricultural produce but it shall cover all related works necessarily for agriculturalist to keep on their work. There cannot be straight jacket formula to interpret the word "agricultural purpose". So many work done by agriculturist during the course of their agricultural work requires engagement of tractor or trolley, shall deem to be agricultural purpose. It shall depend upon the facts and circumstances of each case. It cannot be held to be commercial. There appears to be no evidence on record that the sand loaded in the trolley was delivered by the owner to some other person on payment of rent no presumption could have been raised by the Tribunal to record a finding that the tractor was used for commercial purpose. Ordinarily commercial purpose means use of tractor and trolley for profit earning providing the facility to others. 9. In view of above, finding recorded by the tribunal seems to be perverse. Accordingly, we allow the appeal and modify the impugned award to the extent that the appellant owner shall not be responsible to pay compensation. Respondent-Insurance Company shall be liable to pay compensation in terms of award (respondent No.4). The tribunal shall proceed to recover the compensation from the respondent No.4. Accordingly, we allow the appeal and modify the impugned award to the extent that the appellant owner shall not be responsible to pay compensation. Respondent-Insurance Company shall be liable to pay compensation in terms of award (respondent No.4). The tribunal shall proceed to recover the compensation from the respondent No.4. Insurance company expeditiously, say within a period of six months from the date of receipt of a certified copy of this order and release the same to the claimant in terms of award." 16. There is decision of the Hon'ble Supreme Court in which this aspect has been articulated that the burden of proof lies on the insurance company to prove by cogent evidences that the tractor trolley combination was being used at the material time for commercial purpose which the opposite party No.4 has totally failed to discharge its onus. The cursory and sweeping narrations will not be of any avail to the insurers and they are liable to pay compensation to the claimants. They can not fasten this onus of payment of compensation on the owners of the tractor and absolve themselves of their liability. The learned Tribunal thus, fell into error in this regard to hold the owners liable for payment of compensation to the claimants. 17. Learned counsel for appellants relied upon a Full Bench case of Fahim Ahmed and others v. United India Insurance Company Ltd., [2014 (32) LCD 1475], paras 7 & 8 of which reads as under : "7. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No. 1- Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein. 8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from respondent No.-1 Insurance Company to the Appellants herein." 18. 8. In view of above, we are of the view that, in the facts and circumstances of the case, the High Court was not justified in transferring the burden of paying the amount of compensation from respondent No.-1 Insurance Company to the Appellants herein." 18. Learned counsel for appellant submits that the decision of the learned Motor Accident Claim Tribunal, Lakhimpur Kheri in respect of issue no.4 is mainly based on the contention advanced at the hand of the insurers by misleading the Tribunal by quoting the case of Natwar Parikh & Co. Ltd (Supra). In this case it was held by the apex court while dealing with provisions of the 'Karnataka Motor Vehicle Taxation Act' 1957, that categorisation of vehicles for taxation purpose of the Act depends upon the use of motor vehicle on a given occasion. If a tractor trolley is used for commercial purpose, higher tax would be levied. However, the Hon'ble Court in paragraph-19 of the report made it clear that the provision of the Karnataka Motors Vehicle Taxation Act, 1957 is to be construed on its own force and not with reference to the provisions of the Motor Vehicle Act, 1988. Thus, the case has been wrongly relied upon and quoted before the learned Tribunal as the case is distinguishable as it itself provides that the findings recorded are not to be read with reference to the provisions of the Motor Vehicle Act, 1988. As such the Tribunal fell into error to fasten the liability on the owners of the vehicle though it was being used for agricultural purpose for carrying his own sugarcane to the Purchase Centre against an indent issued by the Sugar Factory in the name of the owners. It was a purely agriculture purpose and there was no violation of the terms and conditions of the insurance policy. 19. He further relied upon a decision of this Court in the case of United India Insurance Co.Ltd. v. Suman and others, (2014) (2) TAC 199 (Alld.), paras-9, 10 and 17 of which read as under : "9. The Karnataka High Court in 1997(1) TAC 100, Oriental Insurance Co. 19. He further relied upon a decision of this Court in the case of United India Insurance Co.Ltd. v. Suman and others, (2014) (2) TAC 199 (Alld.), paras-9, 10 and 17 of which read as under : "9. The Karnataka High Court in 1997(1) TAC 100, Oriental Insurance Co. Ltd. v. N. Chandrashekaran and others has held that in the event Insurance policy prohibits use of tractor for drawing an uninsured trailer attached to it, then no right accrues to the insurer to avoid its liability as such a combination was a "motor vehicle" within the meaning of word defined in the Act. 10. In paragraphs 16 and 17 of the judgment rendered by the Apex Court in National Insurance Co. Ltd. v. Chinnamma and others, AIR 2004, Supreme Court-4338 the Court held that a tractor fitted with a trailer may or may not be used as goods carriage. This aspect of the matter has been discussed in said paragraphs thus: '16. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods" whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle." 17. 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 he 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 he used for carnage of goods by another person for his business activities. The deceased was a businessman. 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 he used for carnage 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. The 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 the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) 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.' 17. From above discussion it appears that law enunciated by the Apex Court generally is that a tractor-trailer combination would constitute a motor vehicle and even a "Goods Carriage" under Section 2(47) if it is used as a vehicle for use in commercial purpose of transporting goods and would fall under Section 2(14) as a "Goods Carriage" for the reason that both, chassis and trailer attached would fall within the meaning of expression Motor Vehicle, hence in such a case, trailer attached to the tractor is to be separately registered and insured, but if at the relevant time it is not being used for any; commercial purpose the trailer does not require separate insurance and registration." 20. In Natwar Parikh & Co. Ltd. (supra), the Apex Court while dealing with the provisions of Karnataka Motor Vehicles Taxation Act, 1957 held that categorisation of vehicles for taxation under the aforesaid Act depends upon use of motor vehicles on a given occasion, irrespective of whether adapted for that purpose or not. On facts of that case, the Court held that categorisation of tractor-trailer as the "goods carriage" had rightly been made by the taxation authority based on its use on the given occasion. 21. Apart from the above, learned counsel for the appellants, in support of his contentions, has also relied upon the case of Ramhet v. Bajaj Allianz General Insurance Co. 21. Apart from the above, learned counsel for the appellants, in support of his contentions, has also relied upon the case of Ramhet v. Bajaj Allianz General Insurance Co. Ltd. and others, 2014(32) LCD 1927 and submitted that the facts of this case also apply in the present case. 22. Learned counsel for appellants submits that keeping in view the submissions made above, it is crystal clear that the tractor was being used for agricultural purpose for carrying sugarcane of the appellants' own field to the purchase centre against an indent issued by the Sugar Factory in the name of the appellants. The insurers could not discharge their burden of proof by cogent evidences that their was any breach or violation of the terms and conditions of the insurance policy which was in full force at the material time. The insurers could not produce any clinching evidence regarding any rent or reward having been paid to the owners for carrying the sugarcane as it was the produce of the farm of the appellants. The liability of payment of compensation should not, therefore, be allowed to rest on the shoulders of the appellants. The compensation should be fastened on the insurers to achieve the end of justice, equity, good conscience and fair play and they should not be allowed to repudiate their liability for which they are squarely responsible as borne out by several decisions of Hon'ble Supreme Court and this Hon'ble Court mentioned herein above. Thus the contentions of the insurers and the view taken by the learned Motor Accident Claim Tribunal are liable to be struck down and the insurers are liable to pay the compensation awarded. 23. On the basis of discussions made herein above, the responsibility cannot be fixed on the owners at all. The learned Tribunal has erred in not fixing the liability on the insurance company. Thus, the Court comes to the conclusion that the order dated 16.10.2012 is liable to be modified only to the extent of not fixing the liability on the owners and that they shall not be responsible to pay compensation. I order accordingly. 24. The learned Tribunal has erred in not fixing the liability on the insurance company. Thus, the Court comes to the conclusion that the order dated 16.10.2012 is liable to be modified only to the extent of not fixing the liability on the owners and that they shall not be responsible to pay compensation. I order accordingly. 24. The appeal, thus, stands partly allowed with the direction that respondent No.5-Bajaj Allianz General Insurance Company Limited, shall be unequivocally responsible to make the payment of the award against the opposite parties in the terms which were laid down by the Tribunal in its order dated 16.10.2012. Rest of the contents of the order dated 16.10.2012 shall remain same. 25. The amount deposited in this Court shall be remitted to Tribunal forthwith. The appellants-owners shall be entitled to claim the refund, if any.