Punjab-Haryana High Court
Date Of Decision: July 25Th vs Smt. Nanchi Devi And Others on 25 July, 2013
F.A.O. No. 433 of 2010 & 1
F.A.O. No. 435 of 2010
..
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. F.A.O. No. 433 of 2010 [O&M]
Date of Decision: July 25th, 2013
The Oriental Insurance Company Limited
.... Appellant
Versus
Smt. Nanchi Devi and others .... Respondents
2. F.A.O. No. 435 of 2010 [O&M]
Date of Decision: July 25th, 2013
The Oriental Insurance Company Limited
.... Appellant
Versus
Smt. Savitri Devi and others .... Respondents
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. Sanjiv Pabbi, Advocate,
for the appellant.
Ms.Divya Sharma, Advocate,
Amicus curiae for the respondents.
VIJENDER SINGH MALIK, J.
The above mentioned two appeals arise out of the award dated 21.8.2009 passed by learned Motor Accidents Claims Tribunal, Rewari (for short, "the Tribunal"). Claim Petition No. 96 of 2008 brought by Prakash Som 2013.07.31 12:30 I attest to the accuracy and integrity of this document F.A.O. No. 433 of 2010 & 2 F.A.O. No. 435 of 2010 ..
Smt. Nanchi Devi and others has been allowed by way of the impugned award in a sum of Rs. 3,21,500/- while the Claim Petition of Smt. Savitri Devi and others, bearing No. 97 of 2008, has been allowed vide impugned award in a sum of Rs.2,73,500/-. The liability to pay the compensation has been held to be of both the respondents and it has been held that the same would be joint and several.
These appeals are brought by the Oriental Insurance Company Limited, the insurer challenging its liability to satisfy the awards on the ground that the deceased had been travelling on the mudguard of a tractor and as such, the tractor was being used for carrying passengers and this use of the tractor was in violation of the terms and conditions of the insurance policy.
On 12.5.2008 at about 9.00 AM, Joginder Singh with his maternal uncle Om Parkash and Laxman started for Delhi from Village Berli Kalan on tractor trolley in order to sell wheat of the joint family. The tractor was driven by Joginder Singh while Om Parkash and Laxman were sitting on the tractor. They were near Village Dadanpur on Jhajjar- Rewari road. Suddenly 5 - 6 stray cattle came on the road. Joginder Singh could not control the tractor and to save the animals, the tractor turned into the roadside pits and turned turtle there. Joginder Singh fell down from the tractor at a considerable distance while Om Parkash and Laxman were crushed under the trolley that was loaded with wheat.
The aforesaid averments have been denied by the respondents. The insurance company has also challenged its liability to pay the compensation for the reason that Om Parkash and Laxman were Prakash Som 2013.07.31 12:30 I attest to the accuracy and integrity of this document F.A.O. No. 433 of 2010 & 3 F.A.O. No. 435 of 2010 ..
travelling on a tractor which is not a passenger carrying vehicle.
Learned Tribunal has, however, held both the respondents liable to satisfy the award and, therefore, liability has been held joint and several.
Learned counsel for the appellant has contended that the deceased were travelling on the mudguard of the tractor and, therefore, they were unauthorized passengers on the tractor. According to him, even Om Parkash and Laxman cannot be said to be labourers travelling with the vehicle because Om Parkash is son of the owner of the tractor. He has further submitted that the tractor is meant to pull other implements or trolley in connection with agricultural operations and it has a seat for its driver only. According to him, any other person travelling on the tractor while sitting on the mudguard thereof or otherwise is unauthorized passenger and the insurance company is not liable to pay compensation if any such person dies in an accident. In this regard, learned counsel for the appellant has cited before me a decision of a co- ordinate Bench of this court in National Insurance Company Limited Vs. Chandro and others 2011 (2) RCR (Civil) 135.
Learned amicus curiae for the respondents has submitted that the deceased were travelling on the tractor with a view to sell their produce. According to her, they were travelling with their goods and, therefore, they cannot be said to be unauthorized passengers.
Though, there is no controversy in this case about the fact that the deceased were travelling on the mudguard of the tractor, yet the said fact is admitted by Joginder Singh [PW-3] by saying that Om Parkash and Laxman were sitting on mudguard of the tractor while he was driving Prakash Som 2013.07.31 12:30 I attest to the accuracy and integrity of this document F.A.O. No. 433 of 2010 & 4 F.A.O. No. 435 of 2010 ..
the same. Even in the claim petitions, it is mentioned that Om Parkash and Laxman were sitting on the tractor. There is no other place on the tractor to sit except the mudguards and, therefore, it is an established fact by now that the deceased were travelling on the mudguards of the tractor.
It is, thus, clear now that the deceased were not travelling in the trolley with the wheat. They were travelling on the mudguards of the tractor. A tractor is not a vehicle meant for carrying the passengers and it is not insured as a passenger carrying vehicle. The use of the tractor by carrying passengers on the same has been a use contrary to the terms and conditions of the insurance police.
It has been held in Chandro's case [supra] that the insurer shall not be liable if the claimants or deceased had been travelling on the mudguard of the tractor. However, it is laid down that if there is an insurance policy, as is the case before me, then the amount of Rs.50,000/- would have to be paid by the insurance company on the ground of no fault liability.
In this view of the matter, the appeals partly succeed and are partly allowed holding that the insurance company is not liable to pay compensation in this case beyond Rs. 50,000/- in each claim petition.
(VIJENDER SINGH MALIK) JUDGE July 25th, 2013 som Prakash Som 2013.07.31 12:30 I attest to the accuracy and integrity of this document