Madhya Pradesh High Court
Kedar Lal Garg vs Ramhetlal on 9 May, 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 9th DAY OF MAY, 2024
MISC. APPEAL No. 243 OF 2007
BETWEEN:-
KEDARLAL GARG S/O SHRI NEHNERAM
GARG, AGED 57 YEARS, CASTE VAISHYA,
R/O GADHI, TEHSIL VIJAYPUR, DISTRICT
SHEOPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI R.P.GUPTA - ADVOCATE )
AND
1 . RAMHETLAL S/O NEKALIYA, AGED
52 YEARS
2. SMT SAMPATIYA W/O SHRI
RAMHETLAL, AGED 50 YEARS, R/O SDM
COURT KE SAAMNE, SABALGARH,
DISTRICT MORENA (MADHYA
PRADESH)
3. BIRBAL S/O SHRI BHIKHU JATAV,
AGED 29 YEARS, R/O MANGROL,
TEHSIL SABALGARH, DISTRICT
MORENA (MADHYA PRADESH)
4. NATIONAL INSURANCE COMPANY
LIMITED, HARIRAJ TALKIES KE
SAAMNE, MS ROAD, MORENA
THROUGH BRANCE MANAGER
(MADHYA PRADESH).
.....RESPONDENTS
(SHRI R.V.SHARMA - ADVOCATE FOR RESPONDENT NO. 4)
AND
MISC. APPEAL No. 305 OF 2007
2
BETWEEN:-
NATIONAL INSURANCE COMPANY
LIMITED, THROUGH DIVISIONAL
MANAGER, DIVISIONAL OFFICE NO.
2, INDRAGANJ, GWALIOR (MADHYA
PRADESH).
.....APPELLANT
(BY SHRI R.V.SHARMA- ADVOCATE )
AND
1 RAMHETLAL S/O NEKALIYA, AGED
520YEARS
2. SMT SAMPATIYA W/O SHRI
RAMHETLAL, AGED 48 YEARS, R/O
SDM COURT KE SAAMNE,
SABALGARH, DISTRICT MORENA
(MADHYA PRADESH)
3.KEDARLAL GARG S/O SHRI
NEHNERAM GARG, R/O GADHI,
TEHSIL VIJAYPUR, DISTRICT
SHEOPUR (MADHYA PRADESH)
4. BIRBAL S/O SHRI BHIKHU JATAV,
R/O MANGROL, TEHSIL SABALGARH,
DISTRICT MORENA (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO. 3 BY SHRI R.P.GUPTA- ADVOCATE)
These appeals coming on for orders this day, the court passed the
following:
ORDER
This order shall govern disposal of M.A.No. 243/2007 and 305/2007 as both these appeals are filed by owner and Insurance Company respectively assailing the common award dated 30/11/20061 passed by Motor Accident Claims Tribunal, Sabalgarh, District Morena in claim cases No. 72/2005.
32. By the impugned award, Claimants respondents No. 1 and 2 have been awarded a compensation of Rs. 1,72,000/- for the death of their child Lakhi alias Lakhan Kushwah in road accident dated 31/5/2005.
3. While passing the impugned award, Claims Tribunal found that since the deceased was travelling on the tractor in breach of Insurance Policy, therefore, Insurance Company cannot be held liable for payment of compensation; however, under the principle of 'Pay and Recover', Insurance Company was directed to make the payment of compensation amount first to the claimants and thereafter recover the same from owner and driver of the offending vehicle.
4. Briefly stated facts of the case are that on 31/5/2005 at about 5.00 pm due to rash and negligent driving of tractor driver, tractor dashed the deceased Lakhi alias Lakhan due to which he died on spot.
5. Insurance Company has filed M.A.No. 305/2007 on the ground that as per the evidence came on record and the findings of Claims Tribunal itself in para 24 and 25 of the impugned award, it is clear that deceased was travelling on the tractor and therefore, learned Claims Tribunal erred in directing the Insurance Company to make the payment of compensation amount first to the claimants and thereafter recover the same from the owner and driver of the offending vehicle. 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).
46. Whereas, M.A.No. 243/2007 has been filed on behalf of the owner of the offending vehicle assailing the findings of Claims Tribunal whereby while exonerating the Insurance Company from the liability, owner and driver of the offending vehicle were held liable for payment of compensation amount. It is the submission of learned counsel for the owner that the impugned award is passed against the evidence which came on record according to which it is clear that deceased was walking by the side of road when the accident happened. Therefore, learned Claims Tribunal erred in exonerating the Insurance Company from its liability.
7. None appeared on behalf of the Claimants even after service of notice.
58. After hearing learned counsel for the Insurance Company and going through the record, it is evident that the deceased was traveling on the tractor as passenger and so is the finding recorded by the Claims Tribunal. 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 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 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, appeal preferred by Owner of the offending vehicle, in light of the above discussion, appeal fails and therefore, is liable to be dismissed.
611. Accordingly, the appeal filed by Insurance Company vide M.A.No. 305/2007 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.
12. M.A.No. 305/2007 preferred by Insurance Company is allowed and that of Owner of the offending vehicle vide M.A.No. 243/2007 is hereby dismissed.
(ROOPESH CHANDRA VARSHNEY) JUDGE jps/-
JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH PRAKASH GWALIOR, 2.5.4.20=287738d30aabaeda9b10cecdf179 cec865c7633f4cfb9e38ce14fcbb05b9522a, postalCode=474001, st=Madhya Pradesh, SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6 B8072A2D8C01433EBD48AE4F609F108CA 8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2024.05.22 10:24:45 +05'30'