Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 845 (MP)

New India Assurance Co. Ltd. v. Kalabai

2017-07-20

S.K.AWASTHI

body2017
JUDGMENT : S.K. AWASTHI, J. 1. The Insurance Company has preferred this appeal takes exception of the portion of the award dated 21.03.2003 passed in Claim Case No. 234/1998 by Member, Motor Accident Claims Tribunal (for brevity, the 'Tribunal'), Chhachoda, District Guna, whereby the appellant/Insurance Company has been fastened with the liability to satisfy the claim and make payment to the claimants. However, the liberty has been extended to the Insurance Company to recover the same from the owner and driver of the offending vehicle. It is this direction of pay and recover, which is assailed by way of present appeal. 2. The facts which led to filing of claim case before the Tribunal are that on 26.03.1998 the deceased Ramesh was travelling on tractor trolley bearing Registration No.R.J.28/R-3056, which was owned by the respondent No. 6 Pankaj Maheshwari and driven by the respondent No. 5 Ramswaroop Kirar. It is alleged that at about 8.00 am, due to rash and negligent driving by Ramswaroop Kirar, Ramesh fell down from the tractor trolley and due to which, he died on the spot. An F.I.R. was lodged against the driver Ramswaroop Kirar at Police Station Kumbhraj, District Guna. After investigation, the charge-sheet was filed for the commission of offences punishable under Sections 279, 337 and 304-A of Indian Penal Code, 1860 (for brevity, the 'IPC') before the concerned criminal Court. 3. The family members/dependents of the deceased Ramesh filed the claim petition under section 166 of the Motor Vehicles Act, 1988 (for brevity, the 'Act'), claiming compensation amounting to Rs. 17,29,800/- against the non-applicants as jointly and severally, which was decided by the impugned order dated 21.03.2003. 4. The Tribunal after considering the evidence on record passed the award of Rs. 1,80,000/- with interest @ 9% per annum till payment is made, as compensation for the death of Ramesh against the owner and driver of the offending vehicle and it was directed that the Insurance Company will satisfy the award and then recover the amount from the owner and driver of the offending vehicle. Being aggrieved by the finding recorded by the Tribunal, appellant/New India Assurance Company Limited has filed the instant appeal. 5. Being aggrieved by the finding recorded by the Tribunal, appellant/New India Assurance Company Limited has filed the instant appeal. 5. The primary contention of the appellant is that the Tribunal committed error in applying the principle of pay and recover from the owner as there was a breach of policy due to the fact that the tractor was insured for the agricultural use and not for carrying the passengers. At the time of the alleged accident, the tractor was being used for carrying the passengers. In these circumstances, the award deserves to be modified by wholly exonerating the appellant/Insurance Company. The order passed by the Tribunal directing the appellant to pay the amount of compensation to the claimants and then to recover from the owner or driver of the vehicle is not sustainable in the eyes of law and no liability could be fastened on the appellant/Insurance Company. 6. The respondents on the other hand have supported the impugned award and submitted that the same is based on sound reasoning and is in accordance with the provisions of law. 7. Having examined the contentions of the learned counsel for the parties and perused the Insurance Policy (Ex.D/1), it appears that the offending vehicle was insured between the period from 05.03.1998 to 04.03.1999 with the appellant-Insurance Company under the "agricultural and forestry package insurance policy". 8. From the statement of eye-witness Ghanshyam (AW-4), it appears that the deceased Ramesh was travelling on the tractor trolley as a passenger, whereas no premium for carrying the passengers/persons except driver was paid by the Insurance Company. In the case of Beer Narayan Singh v. Ghanshyam, 2017 ACJ 1474 , it is laid down by the Chhattisgarh High Court as follows :- "27. As far as no passenger is permitted to be carried on the tractor or even in the trolley attached with the tractor is concerned, the tractor and the trolley were registered for agricultural purposes which means that only agricultural produce could be carried in the tractor and trolley. A passenger is not supposed to be carried in the tractor or trolley as there is no seating capacity available in the tractor or trolley except for the driver. A passenger is not supposed to be carried in the tractor or trolley as there is no seating capacity available in the tractor or trolley except for the driver. Therefore, the insurance company cannot be held liable for payment of compensation in a case of suffering injury or death of a person, who was travelling in the tractor or trolley as an unauthorised or gratuitous passenger." 9. In the case of Phool Singh v. Pankhi & others, 2004 ACJ 843 , it is held by Division Bench of this Court that wherein the trolley tilted and a passenger fell into ditch resulting in his death, there is violation of terms and conditions of policy and the insurance company is not liable for making the payment of amount of compensation awarded by the Tribunal. When the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle under Section 147 of the Act, unless such passenger is the owner or agent of the owner of the goods accompanying such goods absolutely, there is no need for the Insurance Company to pay compensation since there is no contractual liability under the statute to pay the amount to the gratuitous passenger travelling in the goods carriage vehicle. Under these circumstances, this Court is of the view that a direction could not be given to the appellant/Insurance Company to pay the claimants and recover from the owner of the vehicle. So, the appellant/Insurance Company is hereby absolved from the liability or payment of award amount to the claimants of the deceased. 10. In view of the foregoing discussion, the appeal succeeds in part. The direction whereby the appellant-Insurance Company was held liable to pay compensation is set aside. The amount of compensation awarded by the Tribunal including the cost of appeal shall be payable by the owner of the offending vehicle in question. Counsel fee Rs. 1000/-, if certified. 11. Since the appellant-Insurance Company has deposited part of the amount under award, the appellant-Insurance Company will be entitled to get the amount from the owner of the vehicle.