Delhi High Court
United India Insurance Co Ltd vs Jagat & Ors on 28 July, 2017
Author: J.R. Midha
Bench: J.R. Midha
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28th July, 2017
+ MAC.APP. 55/2012
UNITED INDIA INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Gupta, Adv. for
Ms. Suman Bagga, Adv.
versus
JAGAT & ORS ..... Respondents
Through: Mr. Arvind Chaudhary and Ms. Asha
Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the award of the claims Tribunal whereby compensation of Rs.7,24,200/- has been awarded to respondent No.1.
2. On 6th December, 2005 at 7.55 AM, Mohd. Anwar Hassan was operating the crane for loading/unloading of containers at CCI Empty Yard, Tughlakabad, New Delhi and Jagat was putting the hook of the crane in the hole of the container when the driver suddenly and abruptly put the crane in motion to pick up the container in upward direction due to which Jagat fell down on the floor and suffered fracture in the spinal cord and fracture in both the forearms. Jagat was taken to Safdarjung Hospital where he remained admitted from 6th December, 2005 to 5th January, 2006. Jagat MAC. APP. 55/2012 Page 1 of 7 suffered burst fracture of C6, D10, D11 vertebra and disruption of posterior spinal arch at C5-6 level. He further suffered parenchymal at C5-6 & C6-7 of spinal cord along with increased parenchymal intensities on T12 vertebra. The injury suffered by Jagat resulted in Paraplegic and as per disability certificate Ex.PW1/28, he has suffered 100% permanent disability and is a case of post traumatic injury of dorsal and CX spine with quadriplegia.
3. The Claims Tribunal awarded compensation of Rs.14,500/- towards medical expenses, Rs.20,000/- towards conveyance, Rs.20,000/- towards special diet, Rs.1 lakh towards pain and sufferings and Rs.5,69,700/- towards loss of income and future earnings on account of permanent disability. Total compensation awarded is Rs.7,24,200/-.
4. Learned counsel for the appellant urged at the time of the hearing that the crane in question was insured under a CPM (Contractor's Plant and Machinery) Policy as an equipment/machinery and not as a motor vehicle under Section 147 of the Motor Vehicle and the appellant's liability is restricted to Rs.3,00,000/- only. Learned counsel for appellant further submits that no extra premium was charged to cover the third party liability.
5. Learned counsel for respondent No.1 urged at the time of the hearing that the crane is a motor vehicle within the meaning of Section 2(28) of the Motor Vehicles Act and the third party liability is statutory under Section 147 of the Motor Vehicles Act.
6. The learned Trial Court held the crane in question to be a motor vehicle within the definition of Section 2 (28) of the Motor Vehicles Act. Relevant portion of the impugned judgment is reproduced hereunder :
"... 6. The learned counsel for the R-3/Insurance company is not liable to pay any compensation as the crane involved in the accident MAC. APP. 55/2012 Page 2 of 7 is not a motor vehicle as the same was not having any registration number. Per contra the ld counsel for petitioner has contended that the offending Crane was evidently a motor vehicle having four wheels and was mechanically propelled. It is being further submitted by the learned counsel that the R-3/Insurance Company, itself has contended in para no 1 of its written statement that the driver of the crane was not having valid and effective licence at the time of accident and in para 6 of its WS the insurance company has contended that there were permit violations by the owner of said crane. I find considerable force in the submissions of the Ld counsel for the petitioner. Bare perusal of the section 2(28) of MV Act provides that:-
"Motor vehicle means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and inclusive a chasis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less, than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimetres]".
7. Admittedly the crane in question was a mechanically propelled vehicle and was not of any special type adapted for use only in a factory or in any other enclosed premises within the meaning of exceptions provided in section 2(28) of MV Act. The Ld counsel for the petitioner has also placed reliance on judgment titled Poomani Vs. Tooticorin Thermal Power Project (AIR 1990 Madras 372) wherein the Hon‟ble High court has held that a mechanically propelled crane is motor vehicle. In view of the above discussions, I do not find any force in the contention of the Ld counsel for the Insurance company that the crane involved in the accident was not a motor vehicle hence the said contention of the learned counsel for the Insurance company is hereby rejected.
8. The Ld. counsel for the Insurance company has further argued that it is not liable to pay compensation for the reason that accident had taken place in a private place i.e. in the compound of the R-2/ M/s Roadwings International Pvt. Ltd. Perusal of the record reveals that the accident had taken place in the yard, Tughlakabad, New Delhi and I am of the opinion that the place where the accident happened MAC. APP. 55/2012 Page 3 of 7 cannot be considered to be a private place for the reason that public was also allowed entry therein. Wherever public can enter with permission, the said place becomes a public place or the purpose of Motor Vehicle Act and in this regard, I am also supported by the judgment of the Hon‟ble High Court of Calcutta passed in case titled 'National Insurance Company Ltd. Vs. Abdul Khan @ Abdul Rashid Khan & Ors.'[2006 (1) T.A.C. 756 (Cal.)]. Similarly, in another case titled „Ramchandra & Anr. Vs. Shivanarayan & Ors.‟ [IV 92006) ACC 838], the Hon‟ble Madhya Pradesh High Court has held that if a place is accessible to public it is a public place even if it is a private property. The contention of the Ld. counsel for Insurance company in this regard has no substance and is, therefore, rejected. The Ld counsel for the Insurance company in this regard has no substance and is, therefore, rejected. The Ld counsel for the Insurance company has further argued that the petitioner should have claimed compensation under workman compensation Act instead of Motor Vehicle Act as he was an employee of respondent no. 2. However, Section 167 of MV Act provides that where death or bodily injury of any person gives rise to a claim for compensation under this Act and also under Workmen Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of chapter X claim such compensation under either of those acts but not under both. Thus, it is the option of the petitioner to claim compensation from either of the said forums on account of the injuries sustained by him and the only bar is that the petitioner cannot claim under both the forums. Admittedly, the petitioner herein has not made any claim under Workmen Compensation Act and hence the petition can not be rejected on this ground."
7. With respect to the appellant's contention that the appellant issued CPM (Contractor's Plant and Machinery) Policy, the learned Trial Court observed as under :
"... 21. The learned counsel for the Insurance Company has argued that R-3/Insurance company is not liable to pay any compensation as the insurance company had issued only a CPM (Contractor‟s Plant Machiner) Policy and no Motor Vehicle Policy covering the alleged crane was ever issued by the Insurance MAC. APP. 55/2012 Page 4 of 7 Company. However the nature of business of the Respondent no 2 has been detailed as transportation and handling in the insurance policy, Ex R3W1/5. There is specific and categorical detail about the engine number and the chassis number in the said insurance policy. The officials of the Insurance company were very much aware that they were insuring a crane and have also mentioned the necessary particulars e.g. Chasiss No. 34557 and Engine No. 28L-89- 3121881102 vide policy No. 030600/44/05/30018 valid for the period 15.06.2005 to 14.06.2006 and they can not be permitted avoid their liability only on the pretext that the said policy is named as CPM Policy and not a Motor Vehicle Policy. The respondent no. 3/Insurance company in para 17 of its written statement has contended that the vehicle bearing chasiss No. 34557 and engine No. 28L-89-3121881102 was insured vide policy No. 030600/44/05/30018 (CPM policy) valid from 15.06.2005 to 14.06.2006 in the name of respondent no 2 and only third party risk was covered. Even the witness of the R3/Insurance Company, R3W-1 Sh. Malkiat Singh, Deputy Manager, United India Insurance Company Ltd who has been examined on behalf of the insurance company has deposed that the counsel for R3/insurance company had issued notices U/o 12 Rule 8 CPC to the driver as well as owner of the offending vehicle but the said respondents have not complied with the same and the said notices have been proved as Ex.R3W-1/1. The registered receipts and AD card of the same are Ex.R3W-1/2 to Ex.R3W-1/4 respectively. R3W-1, Shri Malkiat Singh has also filed the report of the Licencing Authority, Mathura alongwith the letter of the company as Ex.R3W- 1/6 and Ex.R3W-1/7. The Ld. counsel for the Insurance Company has also argued that Insurance company is not liable to pay the compensation for the reason that respondent no. 1 and 2 have failed to produce on record valid and effective driving licence of the respondent no 1/driver of the offending vehicle and permit of the offending vehicle at the time of accident and that the liability of the Insurance company is only limited to three lacs as per the Insurance policy, Ex R3W1/5. Per contra the learned counsel for the petitioner has contended that even assuming the liability of the Insurance company to be a limited one as pleaded by the counsel for the Insurance company, the petitioner being third party is nevertheless entitled to receive the entire amount of compensation from the MAC. APP. 55/2012 Page 5 of 7 Insurance company and has contended that the Hon‟ble Apex Court in cases titled "Oriental Insurance Company Limited Vs Cheruvakkara Nafeessa & Ors" [2001 ACJ I] and "Amrital Sood Vs Kaushalya Devi Thapar" [1998 ACJ] has held that the avoidance clause is effective only between the insured and the Insurance company and not a third party. The Ld counsel for the petitioner has contended that the R-3/Insurance company is only entitled for recovery rights from the insured/ owner of the offending vehicle and it cannot be exonerated from its liabilities. I have given my thoughts to the matter. The respondents no. 1 and 2 have failed to appear before this Tribunal to contest the case and they were, therefore, proceeded ex-parte. The respondent no 1 and 2 have failed to controvert the contentions of the learned counsel for the R-3/Insurance company and they have also failed to comply with the notice U/o 12 Rule 8 CPC issued by R-3/ Insurance Company. Postal receipts of these notices have also been placed on record. There is nothing on record also to suggest that these notices may not have been served upon respondents no. 1 and 2. In my opinion, it was the duty of respondent no. 1 and 2 to reply to the notices served upon them. They have failed to do so. On the other hand, they have chosen not to contest the proceedings before this Tribunal. There is no cross-examination of the witness of the Insurance Company i.e. R3W-1, Shri Malkiat Singh by the said respondents. Non-appearance and non-compliance of the notices served upon respondents no. 1 and 2 U/o 12 Rule 8 CPC compels this Tribunal to draw an adverse inference against them to the effect that the offending vehicle did not have a valid DL or permit on the date of accident. Therefore, considering the "twin interest" of the parties i.e. R-3/Insurance company at one hand and that of the third party i.e. petitioner, for whose benefit the present legislation was brought on the statue book, the R-3/insurance company is entitled to recovery rights of the award amount from the insured/ owner of the offending vehicle but only after disbursement of award amount to petitioner in terms of judgment of Hon‟ble Supreme Court of India in case titled 'National Insurance Company Limited Vs. Swaran Singh'[AIR 2004 SC 1531]."
8. There is no infirmity in the findings of the Claim Tribunal. The Claim Tribunal has rightly held the crane to be a motor vehicle within the meaning MAC. APP. 55/2012 Page 6 of 7 of Section 2 (28) of the Motor Vehicles Act. In view of the matter, third party insurance is mandatory under Section 147 of the Motor Vehicles Act. The Claims Tribunal has granted the recovery rights to the appellant to recover the award amount from respondent No. 3 in terms of the principles laid down of the Supreme Court in National Insurance Company v. Swaran Singh, AIR 2004 SC 1531, on the ground that driving licence of the driver of the crane was fake. As such, the interest of the appellant has been sufficiently safeguarded.
9. This court would also like to record that the respondent No.1 has suffered 100% permanent disability due to quadric paraplegic (paralysis of all the four limbs) and respondent No.1 is living a life of vegetable whereas the Claims Tribunal has awarded meager compensation of Rs.7,24,200/-.
10. The appeal is dismissed. The statutory amount be refunded back to the appellant.
JULY 28, 2017 J.R. MIDHA, J.
P
MAC. APP. 55/2012 Page 7 of 7