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2017 DIGILAW 1016 (MP)

National Insurance Company Ltd. v. Malti Devi

2017-09-21

VIVEK AGARWAL

body2017
JUDGMENT 1. This miscellaneous appeal has been filed by the Insurance Company being aggrieved by the award dated 17.7.2003 passed by the Second Additional Motor Accident Claims Tribunal, Morena in Claim Case No.92/2002 awarding a sum of Rs.1,62,500/- along with the interest. 2. It is the contention of the appellant that accident had taken place on 19.6.2002 when the deceased Ummed Singh was travelling on insured Tractor bearing No.MP-06-J-5625. According to the counsel, since Ummed Singh was a passenger in the tractor, which was being driven by respondent No.6 Shishupal Singh, therefore, there was a breach of policy and, therefore, the Insurance Company is not liable to pay any compensation. He has placed reliance on the judgment of various Courts including this Court in the case of New India Assurance Co. Ltd. v. Soneram, as reported in 2010 ACJ 2680 , wherein the ratio of the judgment is that tractor-trolley was insured for agricultural purposes. Three labourers sitting on mudguard of tractor sustained injuries when a tree fell on the vehicle and one of them succumbed to his injuries. Tractor was insured for agricultural purpose and only the risk of driver was covered. Vehicle was used for commercial purpose as it was carrying bricks from brick-klin. Therefore, Insurance Company was held not to be liable. He has also placed reliance on the Full Bench judgment of this Court in the case of United India Fire and General Insurance Co. Ltd. v. Natvarlal and others, as reported in 1988 ACJ 1956, wherein the original policy or true copy was not brought on record and, therefore, it was held that the person, who is not bringing such original copy, adverse inference has to be drawn against such person. Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Brij Mohan and others, as reported in 2007 ACJ 1909 , wherein the ratio is again the same that if there is breach of the insurance policy and tractor was used for non agricultural work, then the insurance company is not liable. 3. Ltd. v. Brij Mohan and others, as reported in 2007 ACJ 1909 , wherein the ratio is again the same that if there is breach of the insurance policy and tractor was used for non agricultural work, then the insurance company is not liable. 3. On the other hand, learned counsel for the respondents No.1 to 5 submits that this appeal is not maintainable inasmuch as requirement of section 173(1) first proviso of the Motor Vehicles Act 1988 is not fulfilled, inasmuch as the first proviso to section 173(1) provides that unless prerequisite of deposit is fulfilled, then the appeal is not maintainable. She has placed reliance on the judgment of this Court in the case of New India Assurance Co. Ltd. v. Baskya and others, as reported in 2009 ACJ 1038, wherein it has been also held that the amount deposited by the company as an interim award under no fault liability can not be adjusted to satisfy the mandatory provisions contained in section 173(1) first proviso. Therefore, learned counsel submits that the appeal is not maintainable. 4. Learned counsel for the appellant has produced certified copy of the application to demonstrate that on 18.3.2004, Insurance Company had deposited Rs.1,31,517/- vide cheque No.835494 dated 11.3.2004 and, therefore, this issue of incompetency of the appeal does not arise, inasmuch as the sum was already deposited. Shri B.N.Malhotra, learned counsel for the appellant has placed reliance on the Division Bench judgment of this Court in the case of Oriental Insurance Co. Ltd. v. Gopal Singh and others, as reported in 1999(2) JLJ 338 = 2000 ACJ 255 , to counter the judgment of the Single Judge in the case of New India Assurance Company Ltd. (supra), produced by the claimants/respondents to point out that even if Insurance Company deposited Rs.25,000/- as interim award under no fault liability, then that amount merges in the final award and the payment already made satisfies the requirement of first proviso. In view of such Division Bench decision of this Court, Shri Malhotra submits that ratio of Single Judge in the case of New India Assurance Company Ltd. (supra), is not applicable inasmuch it is apparent from the application dated 18.3.2004 that the appellant Insurance Company had deposited sum of Rs.1,31,517/- and the remaining amount was deposited prior to that. 5. In view of such Division Bench decision of this Court, Shri Malhotra submits that ratio of Single Judge in the case of New India Assurance Company Ltd. (supra), is not applicable inasmuch it is apparent from the application dated 18.3.2004 that the appellant Insurance Company had deposited sum of Rs.1,31,517/- and the remaining amount was deposited prior to that. 5. In view of such submission, this objection of respondents No.1 to 5 about maintainability of appeal is discarded. 6. Now adverting to the merits of the case, respondents has placed reliance on Ex.D-1 to submit that in fact a sum of Rs.15/- was charged for the passenger and therefore the Insurance Company is liable to pay compensation and cannot be exonerated from its liability. 7. It is apparent from the registration book of the tractor available on record as Ex.P-15 (c) wherein it is mentioned that the sitting capacity of the tractor has been mentioned as one including driver. Since the sitting capacity of the tractor has been mentioned as one in the registration certificate, which by implication means that there is no provision for a passenger to be accommodated on the tractor, and admittedly the fact of the case is that the deceased Ummed Singh was travelling on the mudguard of the tractor, he being a passenger was not covered as per the terms and conditions of the policy and, therefore, as per the law laid down by the Hon'ble Supreme Court in the case of Brij Mohan and others (supra), Insurance Company cannot be saddled with the liability and has to be exonerated. Since this Court has no authority akin to Article 142 of the Constitution of India, therefore, no direction can be issued by this Court as were issued in the case of Brij Mohan and others (supra). 8. In view of the aforesaid, this appeal deserves to be and is hereby allowed to the extent that the Insurance Company is exonerated and award of the claims Tribunal shall be enforceable only against respondents No.6 and 7 in the present appeal. Appeal is disposed of accordingly.