Allahabad High Court
The Oriental Insurance Cmpany Ltd. vs Smt. Tulsa And Others 7 on 17 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED A.F.R. Court No. - 24 Case :- FIRST APPEAL FROM ORDER No. - 500 of 2002 Appellant :- The Oriental Insurance Company Ltd. Respondent :- Smt. Tulsa and others Counsel for Appellant :- Pramod Kumar Counsel for Respondent :- T.C. Seth, P.K. Rai, Prem Kumar Singh, R.K.Dwivedi Hon'ble J.J. Munir,J.
1. This is an appeal by the Insurance Company, arising out of the judgment and award passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Unnao dated 05.07.2002 in Motor Accident Claim Petition No. 276 of 1999. The Insurance Company seeks to relieve itself of the liability to pay the compensation awarded.
2. On the 4th of November, 1999, the deceased, Kali Shanker, accompanied one Radhey Lal, a native of his village, was proceeding to participate in the last rites of the latter's mother, who had passed away. The members of the funeral procession, if it could be called that, boarded an attached trolley to the tractor bearing Registration No. UP-35/9751 in order to ferry the mortal remains of Radhey Lal's mother to the cremation ground. At about half past eleven in the morning hours, as the tractor reached a place called Gadan Khera within the local limits of Police Station Kotwali Unnao, close-by to Jagat Mohan Memorial School, the tractor-trolley turned turtle. It happened because of the driver's negligence. The accident resulted in grievous injuries to Kali Shanker, who succumbed by the time he was conveyed to the hospital. Information in this regard was given to Police Station Kotwali, Unnao. The Police caused the dead body of Kali Shanker to be subjected to autopsy on 05.11.1999. On the 6th of November, 1999, Kali Shanker's son, Jagdish got a First Information Report lodged regarding the incident. Chhota son of Chetau, opposite party to the claim petition, is the tractor owner. He died pending the claim petition and, therefore, his sons, Shivpal and Rajpal, were substituted. Besides his sons, Lal Bahadur son of Binda and Vishun son of Jagan were also impleaded as opposite parties nos.4 and 5 - all four as co-owners in Chhota's stead.
3. The Oriental Insurance Company Limited, 249/1, Civil Lines, Unnao through its Branch Manager are the the tractor's insurers. The aforesaid Insurance Company, who shall hereinafter be referred to as the 'insurers', are the appellants.
4. A joint written statement was filed by respondent nos. 2 to 5 to the claim petition, that is to say, the co-owners of the offending tractor and one on behalf of the insurers. It would be apposite to mention that while alive, Chhota too had filed a written statement.
5. The original owner, Chhota as well as the succeeding co-owners took a stand that the offending tractor was not involved in the accident. That apart, they said that the liability, if any, would be that of the insurers.
6. On the pleadings of parties, the following issues were framed (translated into English from Hindi):
(1) Whether on 04.11.1999 at 11:30 in the day near Jagat Mohan Memorial School, tractor bearing Registration No. UP-35/9751 was driven at high speed and negligently, in consequence of which the tractor-trolley turned turtle, leading to Kali Shanker's death?
(2) Whether at the time of the aforesaid accident, the tractor driver had a valid and effective driving licence?
(3) Whether at the time of the aforesaid accident, the tractor and trolley were insured with the insurers?
(4) Whether at the time of the accident, the tractor and the trolley were being operated in violation of the Motor Vehicles Act?
(5) Whether the claimants are entitled to any compensation and from whom?
(6) Whether the claimants are entitled to any relief and from whom?
7. There is not much quarrel between parties about the factum of accident before this Court, which was held by the Tribunal to have resulted from the rash and negligent driving of the tractor-trolley. On the second issue, the Tribunal found that the driver had a valid driving license, effective from 08.09.1999 to 02.11.2002. On the third issue, the Tribunal noted that the insurers had raised an objection that the tractor was insured with them for the purpose of doing agricultural work and the trolley was not at all insured, rendering them not liable to pay compensation. The Tribunal made a short shrift of this objection, disposing it of with the remark that the objection is not tenable as the insurance cover note that has been produced in original shows that at the time of accident, the tractor was insured with the insurers from 05.11.1998 to 04.11.1999.
8. While deciding Issue Nos. 4, 5 and 6, the Tribunal has dealt with the quantum of compensation payable and determined it at a sum of Rs. 78,000/- payable with interest at the rate of 9% per annum from the date of presentation of the claim petition. The claimants have not preferred any cross-objection or a separate appeal, seeking enhancement of the quantum.
9. Heard Mr. Pramod Kumar, learned Counsel for the insurers and Mr. Prem Kumar Singh, learned Counsel for the claimant-respondent nos. 1, 2 and 3.
10. The deceased was a passenger, who was travelling on the tractor-trolley. The trolley does not appear to have been registered or insured as a separate vehicle for carrying even goods. It could never have been registered as a passenger vehicle or insured as such. The policy covering the tractor is a Kisan Package Insurance Policy, which apparently limits the liability of the insurers to third parties in case of death or bodily injury to any person caused by or arising out of the use of the tractor for agricultural purposes. The tractor is neither a passenger vehicle nor a goods vehicle. The trolley was absolutely unregistered and uninsured, as already said. In this case, the deceased was travelling on the trolley to the cremation ground to participate in the last rites of Radhey Lal's mother. The tractor was travelling on a public road. It was not at all engaged in any kind of agricultural operations. The deceased was certainly not the owner or the driver of the tractor.
11. The question about the liability of the Insurance Company to pay compensation in the case of death of a passenger travelling on a tractor-trolley arose for consideration before the Supreme Court in Oriental Insurance Co. Ltd. v. Brij Mohan and others, (2007) 7 SCC 56. It was held in Oriental Insurance Co. Ltd. v. Brij Mohan (supra) :
"10. Furthermore, the respondent was not the owner of the tractor. He was also not the driver thereof. He was merely a passenger travelling on the trolley attached to the tractor. His claim petition, therefore, could not have been allowed in view of the decision of this Court in New India Assurance Co. Ltd. v. Asha Rani [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 : 2003 SCC (Cri) 493] wherein the earlier decision of this Court in New India Assurance Co. v. Satpal Singh [(2000) 1 SCC 237 : 2000 SCC (Cri) 130] was overruled. In Asha Rani [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 : 2003 SCC (Cri) 493] it was, inter alia, held : (SCC p. 235, paras 25-27) "25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of ''public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a ''goods carriage'.
26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words ''any person' must also be attributed having regard to the context in which they have been used i.e. ''a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.
27. Furthermore, sub-clause (i) of clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."
(See also National Insurance Co. Ltd. v. Bommithi Subbhayamma [(2005) 12 SCC 243] and United India Insurance Co. Ltd. v. Tilak Singh [(2006) 4 SCC 404 : (2006) 2 SCC (Cri) 344] .)
11. Although the effect of 1994 amendment in the Motor Vehicles Act did not call for consideration in Asha Rani [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 : 2003 SCC (Cri) 493], a three-Judge Bench of this Court had the occasion to consider the said question in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1 : 2004 SCC (Cri) 370] in the following terms : (SCC pp. 7-8, paras 17-19) "17. By reason of the 1994 amendment what was added is ''including owner of the goods or his authorised representative carried in the vehicle'. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words ''any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention, there was no necessity of Parliament to carry out an amendment inasmuch as the expression ''any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
18. The observations made in this connection by the Court in Asha Rani case [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 : 2003 SCC (Cri) 493] to which one of us, Sinha, J., was a party, however, bear repetition : (SCC p. 235, para 26) ''26. In view of the changes in the relevant provisions in the 1988 Act vis-à-vis the 1939 Act, we are of the opinion that the meaning of the words ''any person' must also be attributed having regard to the context in which they have been used i.e. ''a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.'
19. In Asha Rani [New India Assurance Co. Ltd. v. Asha Rani, (2003) 2 SCC 223 : 2003 SCC (Cri) 493] it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise."
12. Interpretation of the contracts of insurance in terms of Sections 147 and 149 of the Motor Vehicles Act came up for consideration recently before a Division Bench of this Court in National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700 : (2007) 2 SCC (Cri) 142 : (2007) 4 Scale 36] wherein it was held : (SCC p. 714, paras 23-24) "23[24]. As noted above, there is no contractual relation between the third party and the insurer. Because of the statutory intervention in terms of Section 149, the same becomes operative in essence and Section 149 provides complete insulation.
24[25]. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of the third party and in respect of own damage claims."
It was further observed : (SCC pp. 718-19, paras 33-35) "33[36]. It is also well settled that to arrive at the intention of the legislation depending on the objects for which the enactment is made, the court can resort to historical, contextual and purposive interpretation leaving textual interpretation aside.
34[37]. Francis Bennion in his book Statutory Interpretation described ''purposive interpretation' as under:
''A purposive construction of an enactment is one which gives effect to the legislative purpose by--
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.' 35[38]. More often than not, literal interpretation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the courts should keep in mind the objectives or purpose for which statute has been enacted. Justice Frankfurter of US Supreme Court in an article titled as ''Some Reflections on the Reading of Statutes' (47 Columbia Law Review 527), observed that,''legislation has an aim, it seeks to obviate some mischief, to supply an adequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statutes, as read in the light of other external manifestations of purpose.' "
(See also Oriental Insurance Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428 : (2007) 2 SCC (Cri) 527 : (2007) 5 Scale 269] .)
12. The question whether a passenger travelling in a goods vehicle was a third party fell for consideration of the Supreme Court in New India Assurance Co. Ltd. v. Vedwati and others, (2007) 9 SCC 486, where it was held:
"6. "4. This Court had occasion to deal with cases of passengers travelling in goods vehicles which met with accident resulting in death of such person or bodily injury. Such cases belong to three categories i.e. (1) those covered by the old Act; (2) those covered by the Act; and (3) those covered by amendment of the Act in 1994 by the Motor Vehicles (Amendment) Act, 1994 (hereinafter referred to as ''the Amendment Act').
5. The present appeals belong to the second category.
6. In Satpal Singh case [(2000) 1 SCC 237 : 2000 SCC (Cri) 130] this Court proceeded on the footing that provisions of Section 95(1) of the old Act are in pari materia with Section 147(1) of the Act, as it stood prior to the amendment in 1994.
7. On a closer reading of the expressions ''goods vehicle', ''public service vehicle', ''stage carrier' and ''transport vehicle' occurring in Sections 2(8), 2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e. Sections 2(14), 2(35), 2(40) and 2(47) of the Act, it is clear that there are conceptual differences. The provisions read as follows:
Old Act ''2. (8) "goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers;
*** (25) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motorcab, contract carriage, and stage carriage;
*** (29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey;
*** (33) "transport vehicle" means a public service vehicle or a goods vehicle;' The Act (New Act) ''2. (14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
*** (35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage;
*** (40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey;
*** (47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;' (emphasis in original)
8. ''Liability' as defined in Section 145(c) of the Act reads as follows:
''145. (c) "liability", wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof under Section 140;'
9. Third-party risks in the background of vehicles which are the subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 [of the Act] needs to be juxtaposed with Section 95 of the old Act. Proviso to Section 147 of the Act reads as follows:
''Provided that a policy shall not be required
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.' It is of significance that the proviso appended to Section 95 of the old Act contained clause (ii) which does not find place in the new Act. The same reads as follows:
''(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises,' The difference in the language of ''goods vehicle' as appearing in the old Act and ''goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression ''in addition to passengers' as contained in the definition of ''goods vehicle' in the old Act. The position becomes further clear because the expression used is ''goods carriage' is solely for the carriage of ''goods'. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of ''public service vehicle'. The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short ''the WC Act'). There is no reference to any passenger in ''goods carriage'.
10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.
11. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223 : 2003 SCC (Cri) 493 : (2002) 8 Supreme 594] in which it has been held that Satpal Singh case [(2000) 1 SCC 237 : 2000 SCC (Cri) 130] was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the award."
This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy [(2003) 2 SCC 339 : 2003 SCC (Cri) 540] , SCC pp. 341-43, paras 4-11. Subsequently also in National Insurance Co. Ltd. v. Ajit Kumar [(2003) 9 SCC 668 : 2003 SCC (Cri) 1915] , in National Insurance Co. Ltd. v. Baljit Kaur [(2004) 2 SCC 1 : 2004 SCC (Cri) 370] and in National Insurance Co. Ltd. v. Bommithi Subbhayamma [(2005) 12 SCC 243] the view in Asha Rani case [(2003) 2 SCC 223 : 2003 SCC (Cri) 493 : (2002) 8 Supreme 594] was reiterated."
13. Now, Vedwati (supra) was a case relating to a goods vehicle. The case of a tractor is all the more different and the insurers, by no means, can be held liable to indemnify the owner for an injury sustained by a person travelling on a tractor as a passenger; or the trolley attached to the tractor. The same view was reiterated by the Supreme Court in New India Insurance Company v. Darshana Devi and others, (2008) 7 SCC 416, where the deceased was a person travelling on the tractor's mudguard, that was ferrying a consignment of Safeda to Hoshiarpur.
14. The aforesaid view of the law has been followed by this Court in National Insurance Company Ltd. v. Smt. Leela alias Vimla, 2014 SCC OnLine All 16209, which was also a fatal accident, where the deceased was travelling on a tractor. It was held that a passenger travelling on a tractor, which is not a transport vehicle but one that can be used for agricultural purpose alone, would not make the Insurance Company liable to indemnify the owner for the compensation awarded in case of death of a passenger. To like effect is the decision of this Court in Mohan Kushwaha and others v. Ghanshyam and another, 2011 SCC OnLine All 2570, where it was held:
"9. The argument has no substance inasmuch as it is settled that a tractor is not a transport vehicle and can only be used for agricultural purposes. It cannot carry passengers.
10. It is equally settled that tractor and trolley are two different motor vehicles and have to be insured separately. The trolley in the present case was not insured.
11. In Oriental Insurance Co. Ltd. v. Brij Mohan, 2007 ACJ 1909 (SC), the Supreme Court held that as the tractor-trolley was not insured in addition to the tractor and the tractor was not being used for agricultural purposes for which it was insured, the claim of the labourer travelling in the trolley on being injured in an accident was not maintainable against the insurance company and the owner of the vehicle was liable for the compensation. The aforesaid decision was followed by the Apex Court in United India Insurance Co. Ltd. v. Serjerao, 2008 ACJ 254 (SC). It was held that liability regarding labourers travelling in trolleys is only upon the owner of tractor-trolley and the insurance company is not liable to indemnify the loss.
12. Similar view has been expressed by the Apex Court in National Insurance Co. Ltd. v. V. Chinnamma, 2004 ACJ 1909 (SC). In the said case the tractor and the trolley attached to it were used for transporting vegetables for sale in the market and not for agricultural purposes. It was held that the tractor was meant to be used for agricultural purposes. It cannot be used as a transport vehicle. The trailer or the trolley attached to the tractor would also be required to be used for agricultural purposes unless registered otherwise. In view of aforesaid facts and cir cumstances, there is no force in the appeal and the same is dismissed as devoid of merit."
15. The same principle has been followed in a more recent decision of this Court in Oriental Insurance Company Ltd. v. Biddo Devi (Deceased) and others, 2018 SCC OnLine All 6027.
16. Bearing in mind the fact that the deceased was travelling on board a tractor-trolley on a public road, proceeding to the cremation ground to participate in the funeral rites of Radhey Lal's mother, it was certainly not a case of an injury or death sustained by a third party in the course of use of the tractor for an agricultural purpose. The insurers cannot be held liable at all under the policy to satisfy the award or indemnify the owner. The finding recorded by the Tribunal, therefore, on Issue No. 3 is patently flawed and liable to be set aside.
17. In the result, this appeal succeeds and is allowed. The impugned award dated 05.07.2002 passed by the Tribunal is modified. It is ordered that the compensation awarded shall be recoverable from the owners. The insurers shall stand discharged of their liability. The statutory deposit of Rs. 25,000/- made in this appeal shall be permitted to be withdrawn by the insurers.
18. Costs easy.
Order Date :- 17.6.2022 Anoop (J.J. Munir, J.)