Allahabad High Court
Mohan Singh And Another vs Rajendri And 4 Others on 7 July, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 283 of 2020 Appellant :- Mohan Singh And Another Respondent :- Rajendri And 4 Others Counsel for Appellant :- Pankaj Kumar Govil Counsel for Respondent :- N.K. Srivastava Hon'ble Vivek Agarwal,J.
Heard Sri Pankaj Kumar Govil, learned counsel for the appellants. None for the respondents even when the list is revised.
The only issue which has been raised in this appeal is that the owner of the offending vehicle is aggrieved by the impugned award dated 28.11.2019 to the extent that learned Claims Tribunal has directed the insurance company to pay the claim amount with rights of recovery from the owner of the offending vehicle.
It is the case of the appellant that vehicle was used for agricultural purposes only inasmuch as for carrying agricultural produce to the 'mandi', where accident took place, is part of the agricultural operation and therefore, the finding of the learned tribunal to the effect that tractor was being used against the terms and conditions of the certificate of registration is perverse.
At this stage, Sri N.K. Srivastava appears for respondent no. 5- insurance company and opposes the relief claimed by the learned counsel for the appellant.
Learned counsel for the appellant has placed reliance on the judgment of Hon'ble Supreme Court in case of Shamanna and Another vs. The Divisional Manager, the Oriental Insurance Co. Ltd. and Others as reported in 2018 (9) SCC 650 wherein High Court had enhanced the compensation and had directed the claimants to recover the compensation from the owner of the vehicle. The Supreme Court affirmed the enhancement of the compensation part, but set aside the order of the High Court directing the claimants to recover the compensation from the owner of the vehicle and instead directed the insurance company to pay the enhanced compensation to the appellants/claimants along with the accrued interest reserving a right in favour of the insurance company to recover the same from the owner of the vehicle. Similarly, reliance has been placed on the judgment of Hon'ble Supreme Court in case of the National Insurance Co. Ltd vs. Swaran Singh as reported in 2004 (3) SCC 297.
The fact of the matter is that learned Claims Tribunal has categorically noted that the offending tractor no. UP 85 AP 5266 was driven by its driver having a valid and effective driving license. Tractor was insured with the New India Assurance Co. Ltd. It is also noted that tractor was registered for agriculture purposes and at the time of the accident i.e., in front of gate no. 2 of Mandi Samiti, District Mathura, tractor was being used on the national highway whereas the vehicle insured for the purpose of agriculture purposes cannot be driven on a national highway. Learned Claims Tribunal further observed that if vehicle which is to be used for agriculture purposes is to be taken to another place, then such vehicle is to be transported by keeping it in a truck etc and such tractor could have been used only for the purposes of 'khet-khaliyan' and upon recording such finding, it has directed the insurance company, placing reliance on the judgment of Shamanna and Another vs. The Divisional Manager, the Oriental Insurance Co. Ltd. and Others that insurance company shall pay the compensation and then shall be entitled to recover the same from the owner of the tractor.
In ground no. 6, it is mentioned that the place of accident is gate no. 2 of Mandi Samiti and the deceased was going to Sabji Mandi. The term 'agriculture use' includes carrying agricultural produce to the market as such the use of the tractor on the date of the accident is use for agriculture purposes. Class of the vehicle has been mentioned as tractor (agriculture) in Form-23 i.e., the certificate of registration of the vehicle.
On this aspect law is well-settled as has been laid down by Hon'ble Supreme Court in case of the National Insurance Co. Ltd. vs. Chinnamma and others as reported in 2004 (8) SCC 697 wherein in para-16, the Hon'ble Supreme Court has accepted the preposition that carriage of vegetables being agriculture produce would lead to an inference that the tractor was being used for agricultural purposes, but the same by itself would not be construed to mean that the tractor and trailler can be used for carriage of goods by another person for his business activities. In case of V. Chinnamma (supra), deceased was a businessman, he used to deal in vegetables after purchasing the vegetables, he was to transport the same to the market for the purpose of sale thereof and not for any agricultural purposes. The tractor and trailler therefore, were not being used for agricultural purposes, but in the present case, there is no iota of evidence to the effect that tractor was being used by a third party and was not used for transport of vegetables or foodgrains at the relevant point of time by the owner of the tractor when such accident took place causing injury to a third party, who was not a passenger in the offending vehicle.
Thus, the finding of the learned Tribunal that the tractor had no role to ply on a national highway on which Mandi Samiti is situated where accident took place is a perverse finding.
There was no material before the learned Tribunal to show that tractor was not used for agriculture purpose or was used for transporting goods of a third party. Merely because tractor was brought on the highway and in its registration, it is shown as a vehicle of an agricultural class, does not mean that there was violation of insurance policy. In fact, in the insurance policy, there is no mention of it being insured for only agriculture purpose. Further policy shows that third party premium was charged from the owner of the vehicle and therefore, in absence of any evidence to the contrary that tractor was not being plied for agricultural purposes, the right of recovery bestowed upon the insurance company cannot be sustained. At the cost of re-petition, it is made clear that had insurance company taken pains to lead evidence which appears to be missing from bare reading of the award to the effect that tractor was used by some third party for business purposes and not by the agriculturist to transport his own agricultural produce to the Mandi Samiti, then only the right of recovery could have been bestowed in favour of the insurance.
The Madhya Pradesh High Court in case of Poonam Singh vs. Kamla and others as reported in 1996 ACJ 398 has held that agriculture purpose would not only mean the cultivation of the land and sowing of the seeds, but it includes harvesting, taking of the crops to the thrashing ground, then to the godown and to the Mandi for the purpose of the sale of the agriculture produce. Therefore, when ratio of this judgment is applied, then it is apparent that merely taking a tractor to the Mandi Samiti situated on a national highway cannot said to be use of the tractor for the purpose other than the agriculture purpose.
Thus, this appeal deserves to be allowed and is allowed. The award is accordingly modified and it is directed that insurance company has to indemnify the owner driver of the tractor and they cannot exercise their rights of the recovery after satisfying the award in favour of the claimants.
Before parting with the case, it will not be out of place to mention that the judgments on which learned counsel for the appellant has placed reliance are of no assistance to him inasmuch as there is a direct judgment on this aspect i.e., in case of the National Insurance Co. Ltd. vs. Chinnamma and others as cited above.
In above terms, appeal is disposed off.
Order Date :- 7.7.2020 Vikram/-