Patna High Court
Kalawati Kuer vs Srinivas Singh And Ors. on 30 July, 2002
Equivalent citations: 2003ACJ532
Author: Ashok Kumar Verma
Bench: Ashok Kumar Verma
JUDGMENT Ashok Kumar Verma, J.
1. The appellant-claimant has filed this appeal against the order dated 11.12.1998, passed under Section 140 of Motor Vehicles Act by the District Judge-cum-Motor Accidents Claims Tribunal, Sasaram, in Motor Vehicle Claim Case No. 11 of 1998, whereby the learned District Judge-cum-Motor Accidents Claims Tribunal has dismissed the petition of the claimants under Section 140 of the Motor Vehicles Act.
2. It was argued by the learned lawyer for the appellant that the vehicle was insured with the New India Assurance Co. Ltd., Branch Office, Sasaram and, therefore, the insurance company is liable to pay the interim compensation under Section 140 of the Motor Vehicles Act. The contention of the learned lawyer for the respondent, the New India Assurance Co. Ltd., was that the vehicle involved in the accident was a tractor which was insured for the agricultural purposes and it was not permissible for the owner of the tractor to carry any passenger on it. It was submitted by the learned lawyer for the appellant that the deceased was an Overseer and while he was returning home, due to nonavailability of transport vehicle he was standing on the road and he saw the tractor in question coming there and that tractor was of a person of his village and he boarded it. It was also submitted by him that while on way to the village the tractor met with an accident and it fell down in a canal causing the death of the deceased. It was contended by the learned lawyer appearing for the New India Assurance Co. Ltd. that the deceased was a gratuitous passenger on the tractor and in such case the liability of payment of interim compensation lies on the owner of the vehicle and not on the insurance company.
3. The brief facts of the case are that on 22.9.1997 at about 4 o'clock in the evening the deceased Ram Layak Singh was going to his home in village Parsar and in absence of any conveyance he boarded the tractor bearing registration No. BR 24-A 1199 which was proceeding towards his village and after proceeding to some distance the tractor fell down in a canal and the deceased Ram Layak Singh died due to that accident. When Ram Layak Singh was taken to Medical Officer he was declared dead. On the basis of the fardbeyan of the informant who was elder brother of the deceased a case under Sections 279 and 304-A, Indian Penal Code was registered and after investigation charge-sheet was submitted in the case against the accused.
4. A petition under Section 140 of the Motor Vehicles Act for payment of compensation was filed by the wife and daughter of the deceased. Insurance company filed a written statement in the court below stating therein that it is not liable to pay compensation to the claimants. According to the insurance company it is not the insurer of the tractor bearing registration No. BR 24-A 1139. But it has also been stated in the written statement that the copy of the alleged insurance policy and its existence is still admitted by the company with certain conditions, limitations to its use. It has admitted that the insurance policy was issued by the insurance company in favour of Dudhnath Singh and his three brothers of village and P.O. Parsar in Rohtas district in respect of their Swaraj tractor of 1996 model. Further according to the insurance company the deceased was using the tractor as a passenger carrying vehicle. There is breach of condition of policy.
5. It appears from the record that a copy of the insurance policy had been filed in the court below and, according to it, the Swaraj tractor of 1996 model had been insured by the New India Assurance Co. Ltd. and it mentions the name of Dudhnath Singh and others as the persons insured. In course of argument the learned lawyer for the insurance company submitted that in the copy of the policy which is with him the vehicle number has been shown on one side of the policy as BR 24-A 1139. The copy of the insurance policy which had been filed in the court below show that the policy was valid from 8.2.1997 to 7.2.1998 and the said accident had taken place on 22.9.1997. Admittedly, when the accident of the tractor had taken place the insurance policy in respect of the tractor was valid.
6. Learned District Judge-cum-Motor Accidents Claims Tribunal has mentioned in the impugned order, dated 11.12.1998, that the deceased was not only a gratuitous passenger rather he had opted himself for being carried in the tractor and it is not that the owner of the tractor was carrying the passenger for hire or any fare. The learned District Judge has opined that in such a case neither the owner nor the insurance company can be held liable for payment of any compensation amount although there is no dispute about the case and the manner of accident nor about the involvement of the tractor in the alleged accident.
7. It was submitted by the learned lawyer for the insurance company that in the case of gratuitous passenger the owner of the vehicle is liable to pay the interim compensation under Section 140 of the Motor Vehicles Act. The contention of learned lawyer of appellant was that insurance company is liable to pay interim compensation under Section 140 of the Motor Vehicles Act. It has been held by a Bench of this Court in the case of Kanhai Rai v. Dharampal, 2002 ACJ 260 (Patna), that once an insurance policy is in force with regard to use of motor vehicle at a public place covering liability against third party risk, then the insurer is also liable to pay the interim compensation even though he is not classified as one of the persons against whom an order can be passed under Section 140 and if ultimately it is found at the time of final determination of question of compensation that the insurer is not liable to pay compensation, then an order can be passed for reimbursement of the amount from the owner.
8. In the facts and circumstances of the case, the impugned order dated 11.12.1998 passed by the District Judge-cum-Motor Accidents Claims Tribunal is not tenable in law. Accordingly, this miscellaneous appeal is allowed and the impugned order, dated 11.12.1998, is set aside. The New India Assurance Co. Ltd. is directed to pay an amount of Rs. 50,000 as compensation under Section 140 of the Motor Vehicles Act to the claimants who are the wife and daughter of the deceased in accordance with law within three months from today. If it is found at the time of final determination of question of compensation that the insurer is not liable to pay compensation then an order will be passed for reimbursement of the amount from the owner.
9. Let the lower court's records be sent to the court below forthwith.