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2019 DIGILAW 191 (UTT)

United India Insurance Company Limited v. Farjana

2019-03-12

SHARAD KUMAR SHARMA

body2019
JUDGMENT : 1. These Appeals from Order under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the United India Insurance Company Limited, questioning the validity of the award dated 08.10.2014, as rendered by the Motor Accident Claims Tribunal/1st Additional District Judge, Udham Singh Nagar in M.A.C.P. Case No. 172 of 2012 (New Case No. 1724/2013), Smt. Farjana and others v. Baleshwar Dayal and others. This Appeal from Order was heard initially and was adjudicated upon by this Court along with Appeal from Order No. 25 of 2015 and the final judgment was rendered by the coordinate Bench of this Court on 31.08.2017. Consequent thereto, the Appeal from Order preferred by the United Insurance Company was allowed and the liability to pay the compensation was fastened upon the driver and the owner of the tractor trolley towards the amount of compensation as levied against the Insurance Company. 2. Later on, this judgment was sought to be reviewed by an application filed on 15.12.2017 and the Review Petition was preferred by the owner of the offending vehicle i.e., Tractor Trolley being Review/Recall Application No. 1307 of 2017 in A.O. No. 25 of 2015 and Review/Recall Application No. 1309 of 2017 in A.O. No. 26 of 2015. 3. The precise ground based on which the judgment which was rendered on merits was based upon the ratio, which has been propounded by the Hon’ble Apex Court in a judgment rendered in Civil Appeal No. 2113 of 2018, Auto Cars v. Trimurti Cargo Movers Pvt. Ltd. as decided by the Hon’ble Apex Court on 15.02.2018, para 27 of which would be relevant for the present case which is quoted hereunder:- “27. The object behind sending the summons is essentially threefold- First, it is to apprise the defendant about the filing of a case by the plaintiff against him; Second, to serve the defendant with the copy of the plaint filed against him; and Third, to inform the defendant about actual day, date, year, time and the particular Court so that he is able to appear in the Court on the date fixed for his/her appearance in the said case and answer the suit either personally or through his lawyer.” 4. Though the review applicants in para 7 of their review applications have pleaded as under: “7. Though the review applicants in para 7 of their review applications have pleaded as under: “7. That though the notices were received by the applicant but they could not engage an Advocate under the impression that the dispute is between the claimant and insurance company but now when the liability has been fastened upon the applicants they have received the copy of Judgment and have been advised to get the order reviewed by putting appearance and place on record the defence on behalf of driver and owner.” 5. Precisely, the spirit behind the order of review dated 11.04.2018 was considering the impact and the purpose of issuing summons to the essential parties to the proceedings and enabling them to press their case at the stage of final hearing, so that they may be able to assist the Court to arrive at a proper conclusion with regard to the controversy at hand. The said lacuna which was suffered by the judgment dated 31.08.2017 stood eradicated by the judgment of review dated 11.04.2018 and thereafter the matter is being heard on its own merits. 6. The learned counsel for the owner of the offending vehicle (tractor trolley), Mr. Lalit Sharma had pressed in three major grounds, which are quoted hereunder:- (i) No issues were framed by the Motor Accidents Claim Tribunal, with regard to breach of policy hence the liability cannot be fastened upon the owner of the vehicle. (ii) The vehicle, on the date of the accident, since was not being utilized for any commercial purpose and that there is no evidence in that regard before the MACT, the liability is to be catered by the Insurance Company and not by the owner of the vehicle. (iii) The tractor attached to the trolley, since was insured but the trolley, since it was not insured, the liability of the compensation was to be paid as a consequence of the accident is to be catered by the Insurance Company. 7. Heard learned counsel for the parties. 8. The facts as involved in the instant appeals from order are that on the date of the occurrence of the accident i.e. 26.03.2012, though the actual time of occurrence of accident was not disclosed in the FIR. 7. Heard learned counsel for the parties. 8. The facts as involved in the instant appeals from order are that on the date of the occurrence of the accident i.e. 26.03.2012, though the actual time of occurrence of accident was not disclosed in the FIR. The tractor and trolley which was not bearing any registration number, dashed against Jamil Ahmed and Sartaj who were chatting by the side of the road after parking their motor cycle. Due to the occurrence of accident Jamil Ahmed (35 years) died on the spot and Sartaj (20 years) met with the sad demise on 27.10.2012, when he succumbed to the injuries suffered due to the accident. The deceased Jamil Ahmed was survived by his wife, three children and mother, whereas other deceased Sartaj, was survived by parents respectively, who had filed the claim petitions. 9. The insurance company questioning the fixation of their liability to pay the amount awarded by judgment dated 08.10.2014, respectively by filing the present appeal from orders. 10. As per the argument extended by the counsel for the Insurance Company, his case is that either the tractor or the trolley both were not having any registration number, that is why the FIR was lodged belatedly on next day on 27.03.2012 at 9:30 a.m., against unknown New Holland Tractor 3630. Later on the offending vehicle was traced by the Investigating Officer and charge-sheet was submitted against Baleshwar Dayal, the driver of the offending vehicle and owner of the tractor trolley Mr. Sartaj Singh, who was found to be resident of village Beerunagla, Post and Tehsil Kichha, District Udham Singh Nagar. Later on during investigation both the owner of tractor and driver had admitted their involvement in the accident, and had contested the claim proceedings by filing separate written statement, but after filing of the written statement, they had never made themselves available to be examined as witness during trial of the proceedings, consequently due to which they could not be cross-examined by claimants or the insurance company. Hence no question could be posed to them as to why the tractor trolley was not insured by them. 11. Let us deal with the three issues, which have been pressed by the owner of the offending vehicle after the revival of the proceedings after the judgment of review dated 11.04.2018 passed on the review petition. 12. Hence no question could be posed to them as to why the tractor trolley was not insured by them. 11. Let us deal with the three issues, which have been pressed by the owner of the offending vehicle after the revival of the proceedings after the judgment of review dated 11.04.2018 passed on the review petition. 12. As per the provisions contained under the Motor Vehicle Act, 1988 and in particular, the procedure which governs the proceedings before the Motor Accidents Claim Tribunal, admittedly they are regulated by the provisions contained under the Code of Civil Procedure as provided under Section:- “169 (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of document and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).” 13. As per provisions contained under Section 169(2) of the proceedings, and if at all based on the rival pleadings between the parties, if there were certain controversial question which was required to be determine by the Tribunal, it would always be the prerogative first of the Court to frame proper issues based on the pleadings of the rival parties, and if any of the parties to the dispute is not satisfied with the issue(s) thus framed by the court below, it is always open for the party concerned to invoke Order 14 Rule 5 and 6 and to request the Court to frame the issue, which in the opinion of the party to the proceedings either has not been correctly framed or has been left out to be framed by the Court, the provision under O14 Rule 5 and 6, aimed to have a complete adjudication based on the rival contention, that is why law gives liberty to the parties to get issues framed as per his choice based on the pleadings. Order 14 Rules 5 and 6 read as under:- “5. Order 14 Rules 5 and 6 read as under:- “5. Power to amend and strike out, issues (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. 6. Questions of fact or law may by agreement be stated in form of issues - Where the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing that, upon the finding of the Court in the affirmative or the negative of such issue,- (a) A sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that are of them be declared entitled to some right or subject some liability specified in the agreement: (b) Some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or (c) One or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute. 14. It is that stage, where the provisions of Order 14 Rule 5 comes into play which provides that the Court may at any time before passing a decree amend the issue or frame additional issue as prayed for by the party to the proceedings and then proceedings is to be decided based on the issues thus framed on its own merits. 15. 15. Admittedly, in the case at hand when the Motor Accidents Claim Tribunal was proceeding with to hear the MACT Case No. 172/2012, it had after dealing with the rival contentions, framed issues as narrated in para 7 of the impugned award dated 08.10.2014, which were formulated by the Tribunal in the following manner:- HINDI 16. The proceedings before the Motor Accidents Claim Tribunal was contested by the respondent/owner of the offending vehicle and he, at the relevant time, when the Motor Accidents Claim Tribunal was ceased with the proceedings, had never raised any objection(s) pertaining to the improper formulation of the issues or non framing of the issues and has rather step into the proceedings to address the Court on merits of the issues as was framed by the learned Motor Accidents Claim Tribunal on 20.01.2014 hence the respondent cannot blame the procedure, when they themselves have failed to invoke the provisions of law available to them at the appropriate stage of the proceedings. 17. There has had to be cessation of a procedural law at a certain stage of the proceedings when a party to the proceedings consciously steps into addressing the Court on merits, based on the issues framed by the learned Motor Accidents Claim Tribunal without raising any objection then later on, at an appellate stage, the party to the proceedings cannot be permitted to revert back and take a stand that the issues thus framed by the learned Motor Accidents Claim Tribunal was not in consonance to the provisions contained under Order 14. If this liberty is granted to a party to a proceedings who has taken a proceeding as it is, there would be no end of any litigation rather it will amount to be an abuse of the procedure of law. 18. Admittedly, and even as per the records at the time when the owner of the offending vehicle was facing the proceedings based on the issues referred in para 7, no objection of any nature whatsoever was raised by him regarding an inappropriate or improper framing of issues before the learned Motor Accidents Claim Tribunal itself and hence this issue may not be sustainable at the behest of the respondent which is being sought to be pressed into at an appellate stage under Section 173 of the Motor Vehicles Act. 19. 19. Another point of contest, which has been put in agreement by the learned counsel for the respondent in opposition to the Appeal from Order is to the effect that the offending vehicle at the time of occurrence of accident on 26.03.2012 was not being utilized for any commercial purpose, and since it was a tractor trolley of New Holland Make 3630, no liability can be fastened upon the owner of the offending vehicle for the reason being that the tractor itself was insured with the Insurance Company. 20. Contrary to the argument, as extended by the learned counsel for the respondent, it has been argued by Mr. Pankaj Purohit, the learned counsel for the Insurance Company that under the Insurance Policy, the Tractor and the Trolley both have to be insured independently. Meaning thereby, their liabilities would be governed by the independent contract of insurances between the insured and the insurer and the insurance of the Tractor only in itself cannot be construed as to be insurance for the Trolley also as it has been argued by the counsel of the offending vehicle. 21. Besides this, there is no doubt nor in controversy at the hands of the owner that in accordance with the contents of the FIR as registered on 26.03.2012, it was the Tractor Trolley which was belonging to the respondent which was involved in the accident. The burden of proof under Section 103 of the Indian Evidence Act on the issue as to whether actually the Trolley was being utilized for agricultural purpose or for a commercial purpose it was to be discharged by the owner of the offending vehicle himself and no one else. If he has failed to discharge his burden of proof as per the Indian Evidence Act and looking to the brevity of allegations levelled in the FIR, as well as, claim raised before Motor Accidents Claim Tribunal, the responsibility has had to be shouldered by the owner of the offending vehicle because in the absence of Trolley being insured and which is shown to have been involved in the occurrence of the accident, the liability has to be fastened upon the owner of the vehicle which was the cause of the accident. There is no dispute that admittedly at the time of the accident, the trolley attached to the tractor was not insured. 22. There is no dispute that admittedly at the time of the accident, the trolley attached to the tractor was not insured. 22. All these issues were dealt with in the earlier set of judgment rendered by this Court in the light of the ratio of law as propounded by the Hon’ble Apex Court, wherein while dealing with the ratio as laid down in 2007 (3) TAC 20, Oriental Insurance Company v. Brij Mohan & Others it has been specifically held out in the said judgment that if the tractor trolley attached to the tractor is not insured and is not falling under the insurance cover and which is apparently proved to be involved in the accident, in that eventuality, the Insurance Company cannot be made liable to make the payment of compensation to the injured or the deceased person. “8. The Tribunal in its award has, inter alia, noticed that the appellant herein had raised a specific defence, namely, the trolley was not insured. It does not appear that the said contention of the appellant had been gone into. There is nothing on records to show that the owner of the tractor had produced any insurance cover in respect of the trolley. It is furthermore not disputed that the tractor was insured only for the purpose of carrying out agricultural works. The representative of the Insurance Company Mr. Hari Singh Meena on cross-examination merely accepted the suggestion that cutting the earth and levelling the field with earth would be an agricultural work but respondent No. 1 himself categorically stated in his claim petition before the Tribunal stating that the earth had been dug and was being carried in the trolley to the brick-kiln. Evidently the earth was meant to be used only for the purpose of manufacturing bricks. Digging of earth for the purpose of manufacture of brick-kiln indisputably cannot amount to carrying out of the agricultural work.” 23. Evidently the earth was meant to be used only for the purpose of manufacturing bricks. Digging of earth for the purpose of manufacture of brick-kiln indisputably cannot amount to carrying out of the agricultural work.” 23. This aspect of the matter can further be substantiated from the view point that in another judgment, which has been rendered by this Court in AO No. 433 of 2010, Bhajan Singh v. Jarnail Singh & Others as adjudicated upon by this Court on 06.08.2013, almost an identical controversy, which was involved therein was accepted, and it was held that when the trolley attached with the tractor was not covered by the insurance cover and was not part of the insurance policy, and no premium was proved to have been paid in relation to its insurance, the liability of the loss suffered to the claimants on account of involvement of the trolley in the accident has to be borne out by the owner of the vehicle because the trolley itself since being outside the purview of the insurance cover, the Insurance Company is not bound to pay the compensation. 24. It is an argument of the claimant that even before this Court that whatsoever plea which has been agitated by the Insurance Company was not a plea which was raised before the learned Motor Accidents Claim Tribunal, but considering the ratio as propounded by the Hon’ble Apex Court, it would construed to be the law of the land and once it has been held out that the Tractor and Trolley too has to constitute the part of the insurance cover, in that eventuality, the Insurance Company cannot be made responsible to meet the liability of the compensation to be paid to the injured or the deceased of the accident as the case may be. 25. This controversy has to be visualized from another view point in the light of the ratio laid down by the Hon’ble Apex Court in case of Natwar Parikh v. State of Karnataka & Others, 2006 (I) ACJ 1, which has postulated that in order to constitute a complete goods carriage with which the tractor is insured, it would only fall within the ambit of the said definition when the tractor and the trolley attached thereto is also insured and is being used under the insurance cover to make Insurance Company liable. The Natwar Parik judgment (supra) while discussing the scope of the provisions contained under Section 2(14) pertaining to “goods carriage” and under Section 2(44) pertaining to the “tractor”. As read in correlation to the definition pertaining to the trailer as provided under Section 2(46) of the Motor Vehicles Act, 1988, which reads as under:- (46) “Trailer” means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle; It is an attachment to the tractor and i.e. the “trailer” in view of the definition contained under Section 2(47) of the Motor Vehicles Act, 1988, which reads as under:- (47) “Transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; The same pertaining to the “transport vehicle”, it was held that all vehicles/equipments which has been independently defined under the Motor Vehicles Act, it could be held out that trailer when attached with the tractor and is used for transportation of goods from one place to another then it falls to be within the ambit of the definition of transport vehicle, if the goods thus being carried in the trolley is not an agricultural produce. In that eventuality too, the Insurance Company cannot be held liable for the payment the compensation. “24. Section 2(28) is a comprehensive definition of the words “motor vehicle”. Although, a “trailer” is separately defined under section 2(46) to mean any vehicle drawn or intended to be drawn by motor vehicle, it is still included into the definition of the words “motor vehicle” under section 2(28). Similarly, the word “tractor” is defined in section 2(44) to mean a motor vehicle which is not itself constructed to carry any load. Therefore, the words “motor vehicle” have been defined in the comprehensive sense by the legislature. Therefore, we have to read the words “motor vehicle” in the broadest possible sense keeping in mind that the Act has been enacted in order to keep control over motor vehicles, transport vehicles etc. A combined reading of the aforestated definitions under section 2, reproduced hereinabove, shows that the definition of “motor vehicle” includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. A combined reading of the aforestated definitions under section 2, reproduced hereinabove, shows that the definition of “motor vehicle” includes any mechanically propelled vehicle apt for use upon roads irrespective of the source of power and it includes a trailer. Therefore, even though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor- trailer would constitute a “goods carriage” under section 2(14) and consequently, a “transport vehicle” under section 2(47). The test to be applied in such a case is whether the vehicle is proposed to be used for transporting goods from one place to another. When a vehicle is so altered or prepared that it becomes apt for use for transporting goods, it can be stated that it is adapted for the carriage of goods. Applying the above test, we are of the view that the tractor-trailer in the present case falls under section 2(14) as a “goods carriage” and consequently, it falls under the definition of “transport vehicle” under section 2(47) of the M.V. Act, 1988. 26. In the case at hand, admittedly, what has been discussed above, it shows that on the date when the accident occurred on 26.03.2012, the motorcyclists, Jamil Ahmed and the pillion rider Sartaj are said to have parked their bike by the side of the road, and they were indulged in talking amongst themselves. It was at that moment of time, when the tractor trolley, as referred above, dashed against Jamil Ahmed, who died on the spot and Sartaj was seriously injured and he remained hospitalized for several months, ultimately, he too died on 27.10.2012. Consequently, on the institution of the proceedings for accident claim under Section 166 and 140 of the Motor Vehicles Act, filing a Claim Petition No. 2174 of 2013, which was instituted by the parents of one of the deceased Sartaj on 27.07.2013, claiming for a compensation from the Insurance Company of the such tractor trolley, whereas another claim petition being Claim Petition No. 172 of 2012 which was later on assigned with new number and was instituted on 24.04.2012 by the dependent wife of Jamil Ahmed, which has been adjudicated upon by the Tribunal by the two impugned judgment dated 08.10.2014 under challenge in the present Appeal from Orders. 27. 27. The learned counsel for the Insurance Company in support of his case has placed on reliance on a judgment reported in 2014 (14) SCC page 148, Fahim Ahmad and others v. United India Insurance Company Limited and others has held as under;- “5. A perusal of the records shows that, at the time of the accident, a trolley was attached with the tractor, which was carrying sand for the purpose of construction of underground tank near the farm land for irrigation purpose(s). However, merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. There is nothing on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than agricultural purpose(s), i.e., for hire or reward, as contemplated Under Section 149(2)(a)(i)(a) of the said Act. 6. 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. 7. We may also notice that this Court in National Insurance Co. Ltd. v. V. Chinnamma and Ors. JT 2004 (7) SC 167, held that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes, but the same itself would not be construed to mean that the tractor and trailer can be used for carriage of goods by another person for his business activities. Thus, a tractor fitted with a trailer may or may not answer the definition of 'goods carriage' contained in Section 2(14) of the said Act. 8. Thus, a tractor fitted with a trailer may or may not answer the definition of 'goods carriage' contained in Section 2(14) of the said Act. 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.” 28. Owing to the aforesaid circumstances as already discussed above, on account of the legal embargo and the Insurance Company feeling itself aggrieved and concluding not to be responsible to cater the award made by the Motor Accidents Claim Tribunal has preferred the Appeal from Order Nos. 25 of 2015 and Appeal from Order No. 26 of 2015, questioning the validity of the award dated 08.10.2014 from the view point, that they don’t owe to meet the claim, as the trolley involved in the accident, which was attached to the tractor trolley was not insured. 29. Looking to the dependency and the age of the deceased at the time of accident, this Court is of the view that the determination of compensation as made by the Motor Accidents Claim Tribunal as payable to the dependents of the deceased to the tune of Rs.4,86,074/- to the parents of the Sartaj and Rs.5,57,000/- as awarded to the dependents of the deceased Jamil Ahmed was absolutely a just and reasonable compensation awarded and the liability of which owing to the aforesaid circumstances since the trolley was not insured cannot be fastened upon the Insurance Company and it has to be borne by the owner of the vehicle. 30. Consequently, both the Appeals from Order being AO No. 26 of 2015, United India Insurance Company Limited v. Smt. Farjana and others and AO No. 25 of 2015, United India Insurance Company Limited v. Nijakat Ali and others stand allowed. The owner of the vehicle i.e. respondent No. 3 and 4 of AO No. 25 of 2015 and the respondent Nos. 6 and 7 of AO No. 26 of 2015 are directed to pay the awarded amount to the dependents of deceased employees within the period of two months from the date of production of the certified copy of this order. 31. Subject to the above observation, the Appeals from Order would stand allowed.