Madhya Pradesh High Court
The New India Assurance Co. Ltd. vs Balu Banjara And Ors. on 29 November, 2007
Equivalent citations: 2008(2)MPHT252
Author: N.K. Mody
Bench: N.K. Mody
ORDER N.K. Mody, J.
1. This order shall also govern the disposal of Misc. Appeal No. 1337/05 (New India Assurance Co. Ltd. v. Gopal s/o Kachru and Ors.). In both the appeals the award is one which is dated 2-2-2005 passed by the 7th M.A.C. Tribunal, Fast Track, Ujjain, whereby Claim Case No. 63/04 as also 62/04 were decided.
2. The short facts of the case are that respondent No. 1 claimants Gopal and Balu filed a claim petition alleging that on 13-7-2002 at about 2 p.m. they were going on a motor bike. At that time, JCB machine, which was owned by respondent No. 2, driven by respondent No. 3 and insured with the appellant was driven by respondent No. 3 negligently and rashly with the result the claimants sustained grievous injuries. It was alleged that since the JCB machine was insured with the appellant, therefore, respondent No. 1 is entitled for compensation from respondent Nos. 2 and 3 and also from the appellant. The claim petition was contested by the appellant on various grounds including the ground that the JCB machine is not a motor and was not insured by the appellant as motor under the provisions of the Motor Vehicles Act and it is not maintainable before the Claims Tribunal.
3. After framing of issues and recording evidence, the learned Claims Tribunal awarded Rs. 46,500/- in the claim case filed by Balu and Rs. 34,532/- in the claim case filed by Gopal and also held that since the offending JCB machine was insured with the appellant, therefore, the appellant is liable to pay the compensation, against which the present appeals have been filed. Cross-objections have been filed by the respondents for enhancement of the compensation.
4. Shri M.L. Pathak, learned Counsel for respondent No. 1 submits that in the matter of Balu, the learned Tribunal has awarded only Rs. 46,500/-. The break-up is Rs. 32,000/- for permanent disability, Rs. 8,000/- for medical expenses, Rs. 6,500/- for pain and suffering, special diet. Learned Counsel submits that the claimant Balu sustained fracture of tibia is his leg, he was hospitalised from 13-7-2002 to 31-7-2002 and again from 17-10-2002 to 21-10-2002. He was operated upon twice and the disability was assessed as 26%. The compensation awarded on the disability is on the lower side and on number of heads no amount has been awarded.
5. Learned Counsel further submits that in the matter of claimant Gopal, the learned Tribunal awarded only a sum of Rs. 34,532/-. The break-up is Rs. 25,000/- for permanent disability, Rs. 5,732/- for medical expenses, Rs. 5,000/- for special diet. Learned Counsel submits that the claimant Gopal was driver by profession. He was hospitalised from 13-7-2002 to 20-7-2002 and the disability was assessed to the extent of 19%. Looking to the injuries sustained by him, the amount of compensation awarded is on the lower side.
6. Shri C.P. Singh, learned Counsel for the appellant submits that Exh. D-1 is the policy whereby the offending JCB machine was insured. It is submitted that as per the policy the risk, which was covered by the appellant was "Own Damage Risk" only. It is submitted that since the third party risk was not covered, therefore, the Insurance Company is not liable to pay any compensation. Learned Counsel submits that the offending JCB machine was not a motor, as it was not registered by the RTO and was not insured by the appellant as motor, therefore, the learned Tribunal committed error in HOLDING the appellant liable for compensation. For this contention, reliance is placed by Shri C.P. Singh, learned Counsel for the appellant on a decision in the matter of Central Coalfields Ltd. v. State of Bihar (now Jharkhand) and Ors. , where the question involved was whether machinery such as shovels, trascavators, craned, rappridozers, excavators, which are not adapted for use upon roads and are plied exclusively within enclosed premises of mines are motor vehicles. In the aforesaid case the Jharkhand High Court after placing reliance on a decision of the Hon'ble Apex Court in the matter of Central Coalfields Ltd. v. State of Orissa held that the machineries are not adapted for use upon the roads were/are used within the enclosed premises of the mines and thus cannot be held to be motor vehicles. Learned Counsel submits that since the offending JCB machine was not a motor vehicle and, therefore, the finding by the learned Tribunal whereby the liability to pay the compensation deserves to be set aside.
7. Learned Counsel for the respondent Shri M.L. Pathak and Shri M.K. Jain submit that after due appreciation of the evidence and the policy filed by the appellant, the learned Tribunal has come to the conclusion that the offending vehicle was a motor, as defined under the Motor Vehicles Act and held the appellant liable for payment of the compensation. It is submitted that the finding of the learned Tribunal requires no interference.
8. Section 2 (28) of the Motor Vehicles Act defines motor vehicle. According to which only those vehicles are not covered under the definition of motor vehicle, which are running upon the fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or vehicle having less than 4 wheels fitted with engine capacity of not exceeding 25 cubic centimeters. In the present case the appellant has examined Ramesh Gagrani, A.O. of the Company, who has categorically admitted that the JCB machine is having 4 wheels. It has also been admitted that it is being driven by the driver and it is being used for the purpose of construction of roads. It is also admitted by him that it moves on the roads. So far as the law laid down by Hon'ble the Jharkhand High Court is concerned, it is of no help to the appellant because in this case the Hon'ble Jharkhand High Court has held that the machineries such shovels, traxcavators, cranes, rappridozers, excavators, which are not adapted for use upon roads and are plied exclusively within enclosed premises of mines are not motor vehicles. In the present case the JCB machine is running on the roads and is being used for construction of the roads. Only because it is not being registered by the Regional Transport Authority as motor vehicle and no registration number is being given, it cannot be said that the JCB was not a motor under the provisions of the Motor Vehicles Act. In the facts and circumstances of the case, this Court is of the view that the learned Tribunal has rightly held that the JCB machine is motor for the purpose of Motor Vehicles Act.
9. So far as Policy Exhs. D-1 and D-2 is concerned, the Policy itself is defective. Since JCB is a motor, therefore, it was the duty of the appellant to issue the Policy at after covering all the risks.
10. So far as amount of compensation is concerned, it appears that looking to the injuries sustained by both the respondents Gopal and Balu, the amount of compensation awarded in both the appeals is on lower side as no amount has been awarded on number of heads. In M.A. No. 1323/05 the claimant Balu shall be entitled for the following amount:
Medical expenses Rs. 5,000/-, special diet Rs. 5,000/-, permanent disability Rs. 50,000/-, transportation expenses Rs. 5,000/-, pain and suffering Rs. 5,000/-, and loss of income Rs. 5,000/-, totalling Rs. 75,000/- instead of Rs. 46,500/-. Thus the amount enhanced is Rs. 28,500/-.
In M.A. No. 1337/05 the claimant shall be entitled for compensation as under:
Permanent disability Rs. 25,000/-, medical expenses Rs. 5,000/-, pain and suffering Rs. 5,000/-, expenses incurred on attendant Rs. 5,000/-, loss of income Rs. 5,000/- transportation expenses Rs. 5,000/- and special diet Rs. 5,000/-, totalling Rs. 55,000/- instead of Rs. 34,532/-. Thus the amount enhanced is Rs. 34,532/-.
The enhanced amount shall carry interest @ 7.5% from the date of application. With the aforesaid, the appeals filed by the appellant are dismissed, the cross-objections filed by respondent No. 1 stand allowed. No order as to costs.