Madhya Pradesh High Court
Iffco Tokio General Insurance Com.Ltd. vs Smt.Veervati on 18 September, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 18th OF SEPTEMBER, 2024
MISC. APPEAL No. 607 OF 2017
IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED
VS.
SMT. VEERVATI AND ORS.
APPEARANCE
Shri B.K.Agrawal, learned counsel for the appellant/Insurance Company.
Shri Akhalesh Gupta, learned counsel for respondents No. 1 to 4/claimants.
None for respondents No. 5 and 6.
ORDER
Appellant/Insurance Company has filed this appeal under Section 173(1) of Motor Vehicles Act challenging the liability part of impugned award dated 22/7/2011 passed by Additional Motor Accident Claims Tribunal, Pichhore, District Shivpuri in Claim Case No. 15/2010; whereby, respondents No. 1 to 4/claimants have been awarded a compensation of Rs. 3,47,000/- alongwith interest @7% per annum from the date of claim case for the death of one Surendra Singh Yadav in road accident dated 9/2/2010 and appellant/Insurance Company was fastened with the liability of payment of compensation amount.
2. Briefly stated facts of the case as per impugned award are that on 2 9/2/2010 at about 9-10 pm due to rash and negligent driving of driver of Tractor No. MP33A4397, it dashed a motorcycle and thereafter turned turtle, due to which Surendra Singh sustained grievous injuries and succumbed to the same. Therefore, claimants filed claim case seeking total compensation of Rs. 23,66,667/- for the death of deceased.
3. It is the submission of learned counsel for the appellant/Insurance Company that as per the evidence came on record, deceased was travelling on the tractor which was insured for agricultural purposes and was being used other than the purpose for which it was insured in violation of the policy conditions and in spite of proving the same by adducing evidence, learned Claims Tribunal fastened the liability of payment of compensation amount over the Insurance Company; whereas, in such matters, even the order of pay and recover cannot be passed. In support of his contentions he relied upon the decisions of this Court in the matter of Shriram General Insurance Company Limited Vs. Shanti w/o late Santosh Singh and Ors., 2022(4)MPLJ74, United India Insurance Co. Ltd. Vs. Nattha Ram and Ors., (M.A.No. 104/2004 decided on 20/7/17), The National Insurance Company Ltd. Vs. Ajudhya Bai & Ors., (M.A.No. 429/2003 decided on 22/6/17) and United India Insurance Co. Ltd. Vs. Poonamchand & Ors. (M.A.No. 2762/2007 decided on 22/12/2023).
4. Learned counsel for the claimants opposed the prayer and by filing cross-objections vide I.A.No. 1285/2023 sought enhancement of the compensation amount.
5. Heard learned counsel for the parties at length and perused the record as well as impugned award.
6. Appellant/Insurance Company has filed this appeal against the 3 liability part of the impugned award whereas, claimants have filed cross- objections seeking enhancement of the compensation amount.
7. From perusal of the claim case originally filed by the claimants, it is clear that in the pleadings, claimants have clearly mentioned that at the time of accident, deceased was travelling in the trolley attached with the tractor. Even in her primary statement, respondent No. 1-Veervati (wife of deceased) has stated that deceased was travelling in the tractor- trolley at the time of accident. Even as per police papers, the version of Veervati is approved. Even in the application filed by claimants under Section 140 of Motor Vehicles Act, it is pleaded that at the time of accident deceased was travelling in the tractor-trolley. As such, it is an afterthought to amend the pleadings and mentioned that at the time of accident deceased was walking on the road and when after hitting motorcycle, tractor turned turtle, it hit deceased, who sustained grievous injuries and succumbed to the same and as such same is unbelievable. Even police papers have been admitted by the claimants and therefore, they are bound by the same.
8. In view of aforesaid discussion, it is clear that at the time of accident, deceased was travelling in the tractor-trolley. As such it is evident that the deceased was travelling on the Tractor and was not walking on the road. A person other than the driver is not entitled to travel on the Tractor. As the Tractor is not meant for sitting of any passenger. This aspect has been decided by this Court in National Insurance Company Limited versus Bakaridan & Others 2017 ACJ 2524 wherein it is held that if death of a passenger travelling on the mudguard of Tractor when Tractor met with accident due to its rash and negligent driving then Insurance Company cannot be fastened with 4 liability as seating capacity of Tractor is only one person i.e.driver and no premium is paid for carrying passengers by the side of driver or in trolley and thus only the owner will be responsible for the payment of compensation. This aspect has also been discussed by a coordinate Bench of this Court at Indore in Ramakant Mishra versus Pramod Kumar & Others (Miscellenous Appeal No.733 of 2000 decided on 23.6.2022.
9. As there is violation of the terms and conditions of the Insurance Policy inasmuch as the sitting capacity of the Tractor is only One and no passenger is allowed so also no premium for passenger is charged, therefore, the impugned award is modified to the extent that the amount of compensation will be payable by the Owner & Driver of the Tractor only and even the direction of Pay and Recover cannot be issued to the Insurance Company.
10. As regards, cross-objections, after going through the evidence and pleadings came on record, in the opinion of this Court no ground for enhancement of the compensation amount is made out and the award amount as awarded by the Claims Tribunal is just and proper and accordingly cross-objections are hereby rejected.
11. Accordingly, the appeal filed by Insurance Company vide is allowed and Insurance Company is exonerating from its liability completely and instead owner and driver of the offending vehicle are directed to make the payment of the compensation amount within two month from today to the claimants.
(ROOPESH CHANDRA VARSHNEY) JUDGE jps/-
JAI PRAKASH SOLANKI 2024.09.20 15:42:10 +05'30'