Madhya Pradesh High Court
National Insurance Company Ltd. vs Durga Prasad And 4 Ors. on 14 March, 2008
Equivalent citations: AIR 2008 (NOC) 1437 (M. P.), 2008 (4) ABR (NOC) 694 (M. P.)
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
ORDER U.C. Maheshwari, J.
1. This appeal is directed by the appellant/insurer under Section 173 of the Motor Vehicles Act, 1988 (for short `the Act') being aggrieved by the award dated 5.4.2005 passed by Motor Accident Claims Tribunal, Panna in Claim Case No. 29/03, whereby the claim of respondents 1 to 3 regarding vehicular death of Pappu has been awarded against the appellant/insurer and respondents 4 and 5, the driver and registered owner of the offending vehicle respectively, by holding their joint and several liability to indemnify the sum of Rs. 2,70,000/- along with interest at the rate of 6% P.A from the date of filing the claim petition i.e. 26.3.2003.
2. The facts giving rise to this appeal in short are that on dated 19.4.2003 Pappu Bhumia, aged 22 years, son of respondents 1 and 2 while husband of respondent No. 3, with some other persons of the village had gone to Itwa road for work as labourer on the tractor of respondent No. 5 bearing registration No. M.P.21- 9577. The same was driven by respondent No. 4. At about 4 O' Clock in the noon while they were going to reload the tractor, on the way due to rash and negligent driving of respondent No. 4 deceased Pappu Bhumia sitting on the bonut of the tractor was fell down and sustained injuries. He was taken to the hospital. After preliminary treatment, he was referred to district hospital Panna but on the way of such hospital he succumbed to the injuries. The incident was reported to Police Station Saleha. After registration of the offence, the investigation was held and respondent No. 4 was charge-sheeted for the offence under Section 279,304-A of the IPC. The deceased being bread-winner of the family was earning Rs. 70/per day as laborer. Due to his untimely death, the respondents 1 to 3 have been deprived from the dependency and also sustained mental agony of the incident. The tractor was registered in the name of respondent No. 5 while the same was insured with the appellant. With these averments, respondents 1 to 3 preferred their claim for the sum of Rs. 14,02,200/- and interest on it.
3. In reply of respondent No. 4, it is denied that on the date of the incident the offending tractor was driven by him under the employment of respondent No. 5. He has been falsely implicated in the criminal case. In such premises, he denied all the averments of the claim petition and prayed for dismissal of the same.
4. In reply of respondent No. 5, by denying the averments of the claim petition, it is stated that the deceased was not under employment as laborer on his tractor. The claim is filed for the excessive sum. On holding any liability against him, the same be saddled against the appellant/insurer as the tractor was insured with it.
5. In reply of the appellant/insurer, by denying the averments of the claim petition, it is stated that the same was plied contrary to the terms and conditions of the insurance policy. The deceased was traveling on such tractor by sitting on its bonut and except the driver and the owner, the risk of any other passengers of the tractor was not covered by such policy, hence it is not liable to indemnify any claim and prayed for dismissal of the claim petition.
6. After framing the issues, the evidence was recorded, on appreciation of the same, by holding that the offending tractor was driven by respondent No. 4 in rash and negligent manner resultantly Pappu Bhumia fell down and died, the claim was awarded for the sum of Rs. 2,70,000/- against the appellant and respondent No. 4 & 5 by holding their joint and several liability to indemnify the same. The same is challenged by the appellant/insurer by way of this appeal.
7. Shri N.S.Ruprah, learned appearing counsel for the appellant/insurer assailed the impugned award saying that the risk of any passenger was not covered by the insurance policy and admittedly the deceased was traveling sitting on the bonut of the said tractor from where he fell down and died. He further said that as per terms of the policy, the risk of the driver, owner and third party were covered but the risk of the passenger traveling on such tractor, was not covered and for such purpose, no additional premium was taken from respondent No. 5. He also said that the insurance company is liable to indemnify the claim of third party who was not traveling in the vehicle but it cannot indemnify the claim of such third person who was traveling in the tractor. In such premises, the liability of such claim could not be saddled against the appellant but the tribunal has saddled the same under wrong premises. He also placed his reliance on reported cases of the Apex Court and this Court and prayed for exonerating the appellant from such liability by allowing this appeal.
8. On the other hand Shri A.D.Mishra, learned appearing counsel for the claimants/respondents 1 to 3 by justifying the impugned award and referring the copy of the insurance policy said that the offending tractor was insured with the appellant covering the risk of third party and the deceased being third party, the respondents claim has rightly been awarded against the appellant and respondents 4 and 5. The same does not require any interference at this stage. He also said that in any case, the appellant/insurer may be directed to pay the awarded sum to the claimants first and then recover the same from respondents 4 and 5. In such premises prayed for dismissal of this appeal.
9. Shri Ajay Raizada, the appearing counsel for respondent No. 5 by referring the insurance policy said that the offending tractor was insured covering the risk of third party and the deceased was the third party. In such background, the impugned award does not require any interference at this stage as the same has rightly been passed by the tribunal and prayed for dismissal of this appeal.
10. Having heard the counsel, I have carefully examined the record and also perused the impugned award. In view of the pleadings of the parties and the available evidence, it is undisputed fact on record that deceased Pappu Bhumia was traveling on the tractor sitting on its bonut or some other place from where he fell down and died. Accordingly, he was not the outside but he was sitting as the passenger or laborer of respondents 4 and 5 on such tractor. As per the copy of insurance policy on record, the aforesaid tractor was insured covering the risk of the driver, owner and the third party and the premium was also taken by the appellant in this regard. According to such policy, neither additional premium for any passenger or laborer was paid nor the same was received by the appellant.
11. As per submission of the respondents' counsel, the deceased was covered under the third party. Certainly, that the insurer is a first party and the insured is the second party and besides that every other person may be treated as third party but in view of the settled preposition of law, the passenger or the laborer traveling in such vehicle could not be treated as third party for the purpose of insurance unless their risk is covered under the policy by receiving the additional premium in this regard. Admittedly, such additional premium was not paid in the present case, therefore, the submission of the respondents' counsel has not appealed me that deceased being third party for which insurance policy was issued the claim of respondents 1 to 3 are rightly awarded against the appellant and respondents.
12. Such question is answered by the Apex Court in the matter of New India Assurance Co. Ltd. v. Vedwati and Ors. AIR 2007 SCW 1505, in which it was held as under:
13. The difference in the language of "goods vehicle" as appear 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 definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good 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 'WC Act"). There is no reference to any passenger in "goods carriage".
14. 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.
13. The aforesaid case is based on various earlier decisions of the Apex Court and it speaks that unless the risk is covered under policy by receiving the additional premium, the liability of any passenger could not be saddled against the insurer.
14. The question involved in this appeal is directly answered by the Full Bench of this Court in the matter of Bhav Singh v. Savirani and Ors. 2008 (1) MPLJ-72 in which it was held as under:
8. Similarly, an employee is a third party inasmuch as he is not a party to the insurance policy. But merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless Section 147 of the Act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. Section 147(1)(b) of the Act provides that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against the liabilities mentioned in Clauses (i) and (ii) thereunder. The Proviso to Sub-section (1) of Section 147 of the Act, however, states that a policy shall not be required to cover liability other than the liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to any of the three categories of employees mentioned in Sub-clauses (a),(b) and (c) of Clause (i) of the proviso to Sub-section (1) of Section 147 of the Act. Hence, even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of Sub-section (1) of Section 147 of the Act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in Sub-clauses (a),(b) and of Clause (i) of the proviso to Sub-section (1) of Section 147 of the Act and further in cases where such employees fall under categories mentioned in Sub-clauses (a),(b) and (c ) of Clause (i) of the proviso to Sub-section (1) of Section 147 of the Act, the insurer is liable only for the liability under the Workmen's Compensation Act, 1923.
15. In view of the aforesaid, the award of the tribunal saddling the joint and several liability against the appellant for the awarded sum is apparently perverse and contrary to the law, hence the same is not sustainable. The same is hereby set aside till the extent of the appellant.
16. Under the aforesaid premises, by allowing this appeal, the appellant is exonerated from the liability to indemnify the aforesaid awarded claim to respondents 1 to 3. In such premises, it is directed if the awarded sum has been paid by the appellant to respondents 1 to 3 then it will be at liberty to recover the same from respondents 4 and 5 by filing the execution proceedings in pursuance of this order, while the findings of the tribunal given against the respondent No. 4 and 5 are hereby affirmed. Till this extent, the award of the tribunal is modified. In the facts and circumstances of the case, there shall be no order as to the cost.
17. The appeal is allowed as indicated above.