Madhya Pradesh High Court
National Insurance Co. vs Bakaridan And Ors. on 4 November, 2016
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- MA No. 294/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Misc. Appeal No.294/2005
National Insurance Company Ltd.
Versus
Bakaridan and others
---------------------------------------------------------------------------------------
Shri S.N.Gajendragadkar, learned counsel for the appellant.
None for the respondents.
---------------------------------------------------------------------------------------
JUDGMENT
( .11.2016 ) The insurance company has filed this appeal being aggrieved by the award dated 13.12.2004, passed in Claim Case No. 31/2004 by Fourth Additional Motor Accident Claims Tribunal, Bhind, whereby the claim petition filed by the respondents No.1 to 3 for compensation on account of death of Jumman Khan, the husband of claimant No.1 and father of claimants No.2 and 3, was allowed and compensation of Rs.1,67,000/-
was awarded.
2. The facts in short are that on 22.2.2004 deceased Jumman Khan was travelling in a tractor bearing registration No. UP75-D-9403, which was owned by respondent No.5 Shubham Tripathi, driven by respondent Gaurav Kumar and insured with the appellant-insurance company. It is alleged that in the way near Village Manpura at Police Station Kotwali Bhind, due to rash and negligent driving the alleged -( 2 )- MA No. 294/2005 tractor No.UP75-D-9403 hit the stationed tractor, causing death of Jumman Khan. A First Information Report was lodged against the driver of the vehicle and after investigation, the charge sheet was filed for commission of offence punishable under Section 304-A of Indian Penal Code, 1860 before the Criminal Court.
3. The learned Tribunal after considering the evidence on record passed the award of Rs.1,67,000/- with interest @ 6% till payment is made, as compensation for the death of Jumman Khan against the owner, driver and insurance company, which was payable jointly or severally. It is submitted by the learned counsel for the appellant that an amount of Rs.25000/- is deposited with the Tribunal by the appellant/insurance company.
4. The submissions put forth by learned counsel for the appellant-insurance company are that the Claims Tribunal committed an error in settling the liability as to payment of the amount of compensation in spite of the fact that on the fateful day the deceased was travelling on the mudguard of the insured tractor whereas the sitting capacity of the tractor is only one and carrying passenger on it is in violation of the terms and conditions of the policy and the provisions of the relevant Act. In support of the contentions, the insurance company has placed reliance on Iffco Tokio General Insurance Co. Ltd. vs. Shankarlal, MACD 2008 (2) (M.P.) 673.
5. Having examined the contentions of the learned -( 3 )- MA No. 294/2005 counsel for the appellant, according to me, the legal position canvassed in the case of Phool Singh vs. Pankhi & others, 2004 ACJ 843, wherein the trolley tilted and a passenger fell into ditch resulting in his death, a Division Bench of this Court has held that there is violation of terms and conditions of policy and the insurance company is not liable for payment of compensation. In the cases of Aarif and another vs. Urmilabai and others, 2004 ACJ 1496; United India Insurance Co.Ltd. vs. Kamodi Bai and others, 2007 ACJ 2031; and, Nathu Singh Kushwaha and another vs. Narayan Singh and others, 1 (2011) ACJ 740, this Court has held that mudguard of the tractor is not meant for carrying passenger and thus there is no statutory requirement to cover the risk of gratuitous passenger travelling on a tractor.
6. As per the insurance policy (Ex.D/1), the tractor No. UP75-D-9403 was insured between the period from 31.7.2003 to 30.7.2004 with the appellant-insurance company under the "farmer and package insurance policy".
7. An eye witness of the incident namely Mubarak Ali (PW.2) admitted in his cross-examination that when the accident took place, the deceased Jumman Khan was sitting on the mudguard of the tractor involved in the accident. Sitting on the mudguard is against the policy of the insurance company as in the tractor except the driver seat, there is no other provision for sitting. The tractor involved in the accident was insured for -( 4 )- MA No. 294/2005 agricultural purpose. and no premium for carrying such passenger by the side of driver on the mudguard except driver of the vehicle is paid to the insurance company.
Obviously therefore there is no statutory obligation under Section 147 of the Motor Vehicles Act for indemnifying the liability of the insurance company on behalf of the insured to satisfy the award. In that view of the matter, the finding of the learned Tribunal against the insurance company to the extent of indemnifying the liability of the insured in respect of claiming compensation is not sustainable.
8. In the result, 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 shall be payable by the owner of the vehicle in question. Since the appellant-insurance company has deposited part of the amount under award, the Tribunal is directed to recover the amount from the owner and the appellant-
insurance company will be entitled to get the amount deposited by it from the Tribunal. Cost of the appeal shall be borne by the owner of the offending vehicle. Counsel fee Rs.1500/-, if certified.
(S.K.Awasthi) Judge.
(yogesh)