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2022 DIGILAW 638 (JK)

Oriental Insurance Co. Ltd. v. Razia Begum

2022-11-17

SANJAY DHAR

body2022
JUDGMENT : SANJAY DHAR, J. 1. The appellant-Insurance Company has called in question the award dated 03.12.2013 passed by the learned Motor Accidents Claims Tribunal, Poonch whereby a sum of Rs. 7,49,000/- has been awarded as compensation in favour of the claimants/ Respondent Nos. 1 to 4 herein. 2. It appears that on 26.09.2005, an accident took place as a result of which deceased - Taharuf Hussain, who was travelling on a tractor Bearing No. JK12/1147 received fatal injuries. The legal heirs/dependents of the deceased (Respondent Nos. 1 to 4 herein) filed a claim petition before the Motor Accidents Claims Tribunal, Poonch. The learned Tribunal after holding the enquiry and considering the evidence on record, came to the conclusion that the accident had taken place due to rash and negligent driving of the offending vehicle (tractor) in question by its driver that has resulted in death of the deceased. The learned Tribunal after taking the monthly income of the deceased as Rs. 4,500/- assessed the compensation in favour of the dependents, who happened to be the parents of the deceased, widow of the deceased and minor daughter of the deceased, in the amount of Rs. 7,49,000/- along with interest @ 7.5% per annum. 3. The owner and driver of the tractor did not contest the claim petition before the learned Tribunal whereas the appellant-Insurance Company filed its written statement before the learned Tribunal contesting the claim petition. One of the contentions raised by the appellant-Insurance Company in its written statement filed before the learned Tribunal was that there has been breach of conditions of policy of Insurance on the part of the insured, inasmuch as, that the deceased was allowed to travel on the tractor at the relevant time, which is not legally permissible, nor his risk was covered under the terms and conditions of the policy of insurance. In this regard, the learned Tribunal framed the following issue:- "2. Whether the Respondent Nos. 1 and 2 have violated the terms and conditions of Insurance policy, as such petitioners are not entitled to compensation? OPR" 4. After hearing the parties, the learned Tribunal came to the conclusion that since the appellant-Insurance Company has failed to produce any evidence in support of its contentions, as such, the issue is not proved and accordingly, the same was decided against the appellant-Insurance Company. 5. OPR" 4. After hearing the parties, the learned Tribunal came to the conclusion that since the appellant-Insurance Company has failed to produce any evidence in support of its contentions, as such, the issue is not proved and accordingly, the same was decided against the appellant-Insurance Company. 5. The appellant is particularly aggrieved of this finding of the learned Tribunal on the ground that even if the appellant-Insurance Company had not led any evidence in the case, still there was enough evidence on record available before the learned Tribunal to decide the said issue in favour of the appellant-Insurance Company. It has been submitted that without taking into account the evidence already available on record, it was not open to the learned Tribunal to discard the contentions of the appellant-Insurance Company so far as the same related to the breach of policy conditions. 6. Heard learned counsel for the parties and perused the record of the Tribunal. 7. As per the claim petition, the deceased was working with the offending tractor that was being used for agriculture purposes. In its reply, the appellant-Insurance Company has specifically denied the averments made in the claim petition in this regard and it has been claimed that there has been violation of the terms and conditions of the Insurance Policy. In the copy of the challan filed along with the claim petition and the other evidence led by the claimants, it has been specifically mentioned that the deceased was travelling on the offending tractor at the time of the accident. So there is no dispute to the fact that the deceased was travelling on the offending tractor at the time of the accident. The only question to be determined is as to in what capacity the deceased was travelling on the tractor and whether risk to his life was covered under the terms of the insurance policy. 8. The claimants/respondents have examined as many as four witnesses in support of the claim petition. PW-Mohd. Akbar, the father of the deceased has stated that the deceased was working with the tractor and he had studied upto graduation. In his cross-examination, he has stated that the deceased used to load/unload bajri etc. on the tractor. 9. PW-Akbar Hussain has stated that the deceased was a graduate and he used to teach students and earn money out of that. In his cross-examination, he has stated that the deceased used to load/unload bajri etc. on the tractor. 9. PW-Akbar Hussain has stated that the deceased was a graduate and he used to teach students and earn money out of that. He has further stated that the deceased was preparing himself for higher studies. The statement of PW-Nizam Din is also on similar lines. 10. PW-Mohd. Zaman has stated that the deceased had studied upto B.Ed. and he was teaching the students in the academy. 11. From the foregoing evidence on record led by the respondents/claimants themselves, it is clear that there are contradictory versions as regards the occupation of the deceased. While his father says that the deceased was working with the tractor, the other witnesses produced by the claimants unequivocally state that the deceased was teaching the students and earning income out of it. Even if we trust the statement of the father that the deceased was working with the tractor, he in his cross-examination has clearly stated that the deceased used to load/unload bajri on the tractor meaning thereby that the tractor was being used for the commercial purposes. The contention of the claimants as projected in the claim petition is that the deceased was working as a labourer with the tractor is contradicted by claimants' own witnesses and as such, it is established that he was not working in connection with operation of the tractor. If that is so, then there has been a breach of policy condition because a tractor, without a route permit cannot be used for a purpose other than agriculture purpose. 12. The learned Tribunal while returning finding on Issue No. 2 has ignored all the evidence discussed herein before and simply brushed aside the contention of the appellant-Insurance Company by observing that the appellant-Insurance Company has not led any evidence. If the case of the appellant-Insurance Company is established from the claimants own evidence then there was absolutely no need for the Insurance Company to lead evidence in support of its contention. The owner of the tractor has neither pleaded nor stepped into the witness box to claim that the deceased was working as a labourer for operation of the tractor. The owner of the tractor has neither pleaded nor stepped into the witness box to claim that the deceased was working as a labourer for operation of the tractor. Once the evidence had come on record to show that the deceased was not travelling as a labourer on the tractor, in the absence of rebuttal from the owner of the tractor, the same has to be accepted. Learned Tribunal has therefore, fallen into a grave error by returning a finding that the contention of the Insurance Company has not been proved. 13. Having held that the deceased was travelling on the offending tractor not as a labourer but in some other capacity, the question arises as to whether risk to his life was covered under terms of policy of insurance. So far as the permitted sitting capacity of a tractor is concerned, the same is only one, which means that only a driver can travel on a tractor and the person other than the driver travelling on a tractor is prohibited to do so in terms of Rule 28 of the Rules of the Road Regulations, 1989. Therefore, the risk of such a person who is travelling on a vehicle beyond its capacity cannot be said to have been covered by an Insurance Policy. In view of the above, the risk to life of the deceased in the instance case, who was travelling on the tractor, cannot be stated to have been covered by the terms of the policy of insurance. The appellant-Insurance Company has, therefore, succeeded in proving that the offending tractor was being driven at the relevant point of time in violation of the terms and conditions of policy of insurance. 14. In view of the above, the impugned award passed by the MACT, Poonch to the extent of finding on Issue No. 2 is set aside and it is directed that the awarded sum, after being satisfied by the Insurance Company, shall be eligible to be recovered by the insurer from the owner and driver of the offending vehicle jointly and severally. 15. Appeal stands disposed of accordingly.