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2016 DIGILAW 877 (UTT)

National Insurance Company Limited v. Nitin Kumar

2016-11-24

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. None turned up on behalf of the respondents 5 and 6 despite sufficient service on them. Hence, this Court has heard the arguments of learned Counsels for the appellants and the claimants/respondents 1 to 4. 2. The accident occurred on 19.9.2007 at 6.45 PM when deceased Ashok Kumar, aged 45 years, was dashed by the tractor no. UA06H-4443, which was attached with the trolley (trailer). Tractor trolley was coming from Jaspur, while the motorcycle borne man was going from Kashipur to Jaspur, viz. both were coming towards each other from front facing. On account of this accident, Mr. Ashok Kumar suffered the injuries and later on succumbed to such injuries and lost his life. So, claim petition no. 421/2007 was presented against the insurance company of the tractor. Against the claim of rupees fifty lakhs, the Tribunal granted compensation of Rs. 3,29,000/-, which has been assailed by the insurance company in this appeal. 3. Accident, insurance cover of the tractor and the loss of life by Ashok Kumar have not been disputed. It has been argued that the insurance company of the motorcycle has not been impleaded as the necessary party, while looking to the map prepared by the investigation officer, the whole responsibility for the accident cannot be attributed to the tractor’s driver. 4. I do agree with the above contention and having a look on the map, it can safely be inferred that at least 25 per cent responsibility should be ascribed to the motorcyclist/deceased as well and 75 per cent should be apportioned to the tractor’s driver. 5. It has been further argued that eyewitness PW2 Yadvendra Singh has categorically stated that the accident did not happen from front, but the tractor dashed the motorcycle borne man from its side. It can be visualised that the width of the tractor always remains at least 3 feet less than the trolley (trailer). So, when the tractor had crossed the motorcyclist, then the accident would have occurred due to the width of the trolley (trailer) and it has not been disputed that the trailer was unregistered, while as per Section 2(46), trailer is an independent entity in the form of a vehicle other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle. 6. 6. A coordinate Bench of this Court in AO No. 433 of 2010, Bhajan Singh Vs. Jarnail Singh & Others, rendered the judgment on 6.8.2013, which was having similar facts and wherein the insurance company was exonerated from the liability of satisfying the award and such responsibility was shifted on the owner of the tractor. 7. This Court too in United India Insurance Co. Ltd. Vs. Shakir Ali & Others, 2015 (1) UD 344 , has held that where no premium was paid to the insurance company for plying of the trailer attached with the tractor, then such company could not have been held responsible to satisfy the award. A Constitution Bench of Hon’ble Apex Court has expressed similar view in Natwar Parikh Vs. State of Karnataka, 2006 ACJ 1, and held that the tractor and trailer are separately defined under the Motor Vehicles Act and when combined would constitute a ‘goods carriage’ under Section 2(14) and consequently a ‘transport vehicle’ under Section 2(47) of the Motor Vehicles Act. 8. Evidently, this trailer as a transport vehicle was not got insured by the owner of the tractor and yet it was being plied attached with the tractor. 9. Learned Counsel of the claimants have relied upon a precedent rendered by a Division Bench of Punjab and Haryana High Court, reported in 2005 (1) TAC 270, wherein construing Section 2(44) of the Act, it was held that tractor by itself is not able to carry any load without the equipment. Hence, any equipment attached with the tractor, being a part of the tractor, shall be deemed to be covered under the insurance policy. 10. I think that the above precedent runs contrary to the view taken by the Hon’ble Apex Court as well as the views of this Court. I am unable to agree with the said view for the reason that a trailer may be an equipment so attached with the tractor, but it cannot be placed in the same category as that of harrow, patella, plougher, seederer, etc. All these instruments are unlike of trailer, which do have the big running wheels to be plied on the road and when used attached with the tractor, it is definitely a transport vehicle and most of the times, it is abused by the tractor owner for loading the materials equivalent to a big truck. 11. All these instruments are unlike of trailer, which do have the big running wheels to be plied on the road and when used attached with the tractor, it is definitely a transport vehicle and most of the times, it is abused by the tractor owner for loading the materials equivalent to a big truck. 11. In the present controversy as well, the accident occurred with this trailer, which was neither registered nor insured, as envisaged under the law. So, I think that the insurance company cannot be held liable to pay the compensation. Instead, 75 per cent of the liability is attributed to Moh. Aleem (respondent no. 5) and Shamsher Singh (respondent no. 6) jointly and severally. 12. Appeal stands allowed in above terms. Award is modified to the extent indicated above. 13. Let the amount of compulsory statutory deposit along with the interest it has earned be remitted to the Tribunal concerned and the same shall be returned back, together with the remaining amount already lying with the Tribunal, to the appellant/insurance company. Rupees one lakh, which has been released in favour of the claimants, shall be recoverable by the insurance company from the persons responsible. 14. Let the LCR be sent back.