Allahabad High Court
United India Insurance Co. Ltd. vs Smt. Suman And Others on 6 March, 2013
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
Court No. - 35
Case :- FIRST APPEAL FROM ORDER No. - 611 of 2013
Appellant:- United India Insurance Co. Ltd.
Respondent :- Smt. Suman And Others
Appellant's Counsel :- S.K. Mehrotra
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
( By Hon'ble Rakesh Tiwari, J.) Heard Sri S.K. Mehrotra, learned counsel for the appellant and perused the impugned award.
This First Appeal From Order has been filed against the judgment and award dated 5.12.2012 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.2, Kanpur Dehat in M.A.C.P. No. 411 of 2011, Smt. Suman and another versus Laxmi Chandra and another, whereby compensation of Rs. 4,21,000/- together with interest at the rate 6% per annum was awarded to the claimant-respondents.
The appellant has challenged the impugned award on the ground that the driver of tractor no. UP-78, BY-8577 was driving it in a rash and negligent manner, is erroneous and that Jagdish (since deceased) had not suffered any injuries from the said tractor, hence the claim petition before the Motor Accident Claims Tribunal was not maintainable against the appellant.
It is argued in the alternative that admittedly wooden logs were loaded in the trailer attached with the tractor for transportation, hence the tractor was being used for commercial purpose in breach of the terms and conditions of insurance policy and for this reason too there is no liability of the appellant-Insurance Company for making payment of compensation to the claimant-respondents. The findings of the Tribunal being in teeth of the terms and conditions of Insurance policy are liable to be set aside.
According to the learned counsel for the appellant, trailer attached with the tractor was not insured as no premium for it has been paid. He argues that without appreciating this material aspect the Tribunal has illegally held that the trailer does not require insurance, which finding, being against the provisions of Section 146 of the Motor Vehicles Act, 1988 is liable to be quashed.
Learned counsel for the appellant has relied upon a judgment rendered by the Apex Court in Oriental Insurance Company Ltd. versus Brij Mohan and others, 2007(3) T.A.C.20 (S.C.) in support of his contention that trailer and trolley ought to be separately insured, if used for commercial purpose.
Before considering the relevant provisions of the Act vis-a-vis the facts of the case, the law enunciated by the Apex Court in this regard may be looked into as it appears that law in respect of insurance of trolley or tractor and its registration is not finally settled and there are different views expressed by the Apex Court in this regard. Some High Courts and the Apex Court in some of the judgments have held that it is mandatory for the tractor and trolley in a tractor/trailer combination to be registered and insured separately as this combination can be brought within the definition of "Goods Carriage".
The questions considered by the various High Courts and the Apex Court in this regard are:-
(a) whether trailer is a motor vehicle
(b) whether non-insurance of trailer would take away the liability of the Insurance Company and in which cases ?.
Having heard Sri S.K. Mehrotra, learned counsel for the appellant at length we find that ''semi-trailer'' ''trailer'' ''tractor'' "transport vehicle" and " goods carriage" are defined in Sections 2(14), 2(39), 2(44), 2(46) and 2 (47) of the Act, respectively thus:-
"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;
2(39) " semi-trailer" means a vehicle not mechanically propelled (other than a trailer), which is intended to be connected to a motor vehicle and which is so constructed that a portion of it is super imposed on, and a part of whose weight is borne by, that motor vehicle;
2(44) " tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road roller;
2(46) " trailer" means any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle."
2(47) " transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
The Karnataka High Court in 1997(1) TAC-100, Oriental Insurance Co. Ltd. versus N. Chandrashekaran and others has held that in the event Insurance policy prohibits use of tractor for drawing an uninsured trailer attached to it, then no right accrues to the insurer to avoid its liability as such a combination was a "motor vehicle" within the meaning of word defined in the Act.
In paragraphs 16 and 17 of the judgment rendered by the Apex Court in National Insurance Co. Ltd. versus Chinnamma and others, AIR 2004, Supreme Court-4338 the Court held that a tractor fitted with a trailer may or may not be used as goods carriage. This aspect of the matter has been discussed in said paragraphs thus:
" 16. Furthermore, a tractor is not even a goods carriage. The "goods carriage" has been defined in Section 2(14) to mean "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" whereas "tractor" has been defined in Section 2(44) to mean "a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller". The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle".
17. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to he used for agricultural purposes, unless registered otherwise. It may be, as has been contended by Mrs. K. Sharda Devi, that carriage of vegetables being agricultural produce would lead to an inference that the tractor was being used for agricultural purposes but the same by itself would not be construed to mean that the tractor and trailer can he used for carnage of goods by another person for his business activities. The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage" as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani (supra) and other decisions following the same, as the accident had taken place on 24.11.1991, i.e.., much prior to coming into force of 1994 amendment"
In Natwar Parikh & Co. Ltd. versus State of Karnataka and others, (2005) 7 SCC-364, the Apex Court while dealing with the provisions of Karnataka Motor Vehicles Taxation Act, 1957 held that categorization of vehicles for taxation under the aforesaid Act depends upon use of motor vehicles on a given occasion, irrespective of whether adapted for that purpose or not. On facts of that case, the Court held that categorization of tractor-trailer as the "goods carriage" had rightly been made by the taxation authority based on its use on the given occasion.
In paragraph 19 of the judgment the Court made it clear that the provisions of the Katnataka Motor Vehicles Taxation Act, 1957 is to be construed on its own force and not with reference to the provisions of the Motor Vehicles Act, 1988. Therefore, the case is distinguishable as it itself provides that the findings recorded are not to be read with reference to the provisions of the Motor Vehicles Act.
The Apex Court in the case of Oriental Insurance Co. Ltd. versus Brij Mohan and others, (2007) SCC-56 relied upon by the learned counsel for the appellant has made a distinction between the "goods carriage" intended and being used for agricultural purpose and one used for commercial purpose noticing the judgment in Asha Rani (2003) 2 SCC-223 wherein it was held that-
" as the provisions of Section 147 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 vehicle, the insurers would not be liable therefor. Furthermore, by reason of the 1994 amendment to the Act the liability of the owner of the vehicle to insure it compulsorily was enlarged only to cover the owner of the goods or his authorized representative carried in the vehicle. The intention of Parliament was not that the words "any person" occurring in Section 147 cover all persons who were travelling in a goods carriage in any capacity whatsoever.
Finally, the tractor was insured only for the purpose of carrying out agricultural works. In cross-examination the Insurance Company had merely accepted the suggestion that cutting earth and levelling the field with earth would be "agricultural work" but respondent no.1 himself had categorically stated in his claim petition before the Tribunal that the earth had been dug up and was being carried in the trolley to the brick kiln. Evidently, the earth was meant to be used only for the purpose of manufacturing bricks. Digging of earth for the purpose of manufacture of bricks cannot amount to carrying out of "agricultural work."
The Apex Court considering the effect of deviation for the purpose for which the vehicle was insured held that claim petitioner a labourer injured while travelling in trolley attached to tractor carrying earth to brick kiln but neither was the trolley insured in addition to the tractor nor was the tractor being used for "agricultural work" the only purpose for which the tractor was insured when the appellant received the injuries was commercial.
The Apex Court in that case, in exercise of its extra-ordinary powers under Article 141 of the Constitution of India directed that the award may be satisfied by the appellant Insurance Company but it would be entitled to realize the same from the owner of the tractor-trolley where-for it would not be necessary to initiate any separate proceedings for recovery of the amount as provided for in the Act.
The Division Bench of Allahabad High Court in re: Markandey Singh versus Smt. Chanmuni Devi and another, 2008 (4) ALJ (NOC)802 (ALL) decided liability of the Insurance Company in a motor accident claim holding that a motor vehicle can be used for social, domestic and pleasure purpose and insured's own business. However, when the driver used it as public vehicle, there was violation of the terms of the agreement for Insurance Company as such only owner and driver can be fastened joint and several liability to indemnify the injured.
From above discussion it appears that law enunciated by the Apex Court generally is that a tractor-trailer combination would constitute a motor vehicle and even a "Goods Carriage" under Section 2(47) if it is used as a vehicle for use in commercial purpose of transporting goods and would fall under Section 2(14) as a "Goods Carriage" for the reason that both, chassis and trailer attached would fall within the meaning of expression Motor Vehicle, hence in such a case, trailer attached to the tractor is to be separately registered and insured, but if at the relevant time it is not being used for any commercial purpose the trailer does not require separate insurance and registration.
In this regard sections 146 and 147 of the Motor Vehicles Act, 1988, which provide for registration of the tractor and the tractor separately may also be looked into. These sections provide only for separate registration of trolley attached with tractor if used for commercial purpose but not for separate insurance which led the Courts to interpret these two provisions having divergent views.
Insurance of Motor Vehicles against third party risk falls under Chapter XI of the Motor Vehicles Act, 1988 which contains Sections 145 to Section 164. In this regard, sections 145, 146 and 147 of the Act are ones with which we are primarily concerned in this case for the purpose of consideration of aforesaid two questions. Section 147 is definition clause, which states the requirement of policies and limits of liability whereas section 146 of the Act provides necessity for insurance against third party risk.
Section 146 of the Act broadly mandates that a motor vehicle shall not be used except as a passenger vehicle by any person, in a public place unless the vehicle is covered by third party risk policy of insurance as required in the said chapter. The section is prohibitary in nature making insurance a mandatory pre requisite for the owner to have his vehicle insured before he can exercise his right to be indemnified by the Insurance Company in respect of an accident causing death or injury to the third party whereas Section 147 imposes certain restrictions in respect of use of a particular type of vehicle, which may provide for class of persons covered by it vis-a-vis their liability towards third party in the event of death or injury caused by a motor vehicle. Therefore, the scope of these sections is to be given a liberal interpretation in order to provide a meaningful and practical applicability to claimant (s) in order to fulfill the object of the legislation.
That brings us to the question as to whether in the instant case the Insurance Company can be made liable to pay the compensation. Admittedly, the vehicle in question insured with the Insurance Company was tractor alone. The sitting capacity of the vehicle was only one. It was meant to be used only for agricultural purpose and not for carrying of passengers on public road. Therefore, the Rule position may also be seen as applicable to State of Uttar Pradesh.
Rules 170,171, 173 & 175 of The Uttar Pradesh Motor Vehicles Rules, 1998, provide only for registration of vehicle. Rule 170 prohibits attachment of trailer to motor vehicles which shall be drawn in a public place if the laden weight of the trolley exceeds the limits provided therein and that the State Transport Authority may, by general or special resolution containing reasons therefor and subject to such conditions, as may be specified therein, prohibit or restrict the attachment of trailers or any particular type of trailers generally onany specified route or area, to any motor vehicle or class of motor vehicles.
Rule 171 is in respect to Trailers fitted with tractors and provides that no tractor shall draw on a public road, a trailer exceeding half a ton in weight unladen and fitted with solid steel wheels less than 60 centimetres in diameter whereas Rule 173 provides for attendants on trailers.
Rule 175 pertains to Goods carriage, drawing of trailer or semi-trailer which provides that the holder of a goods carriage permit may use the vehicle for the drawing of any trailer or semi-trailer not owned by him, subject, to the condition that such goods carriage and the trailer or semi-trailer fulfills the requirements of these rules.
A trailer by itself is not a motor vehicle i.e. goods vehicle nor a passenger vehicle. The trailer if attached to a tractor is also not meant to carry any passenger or any load except in accordance with law as stated above. When a trailer is attached to the tractor, the tractor-trailer combination may or may not be used as goods carriage. The question whether the tractor becomes a goods vehicle when a trailer has been attached to it has been left open by the Apex Court in National Insurance Co. versus V. Chinnamma, 2004(8) SCC-697 stating that a tractor is meant for agricultural purpose and fitted with a trailer may or may not answer the definition of goods carriage contained in the Motor Vehicles Act. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes.
The Apex Court dealing with the question as to where the vehicle was admittedly insured for carrying some type of passengers, who could be carried in the vehicle or not laid down the principle in (i) National Insurance Company versus Bommithi Subbhayamma III (2005) ACC-423,2005, ACJ-721, (ii) National Insurance Company Ltd. Versus Baljit Kaur and others Appeal (Civil) No. 16 of 2004 decided on 6.1.2005, (iii) National Insurance Company Ltd. versus Ajit Kumar and others, (iv) New India Assurance Company Ltd. versus Asha Rani and others, ( 2003) 1 SCC-223.
Section 61 of the Act under Chapter IV provides application of the Chapter to trailers which contains Sections 39 to 53 and their registration etc. whereas Section 146 of the Act provides for insurance of the motor vehicle. Perusal of Section 61 shows that trolley/trailer must have a separate registration but Section 146 of the Act does not provide for separate insurance of tractor and trolley. A semi-trailer is different from tractor-trolly as it is a part of the motor vehicle or the tractor itself whereas a trolley/trailer may become a part of the tractor if attached to it, which is at the option of the user of the tractor. The legislature, therefore, in its wisdom has not provided for separate insurance of tractor-trolley though it provides for a separate registration of the trolley if used for commercial purpose. This appears for the reason that a trolley without any motor/engine fitted for its propulsion would not be a motor vehicle itself unless attached to a tractor or external source of such kind. The registration of tractor-trolley depends solely upon the intention and actual use of tractor-trolley combination and even in that case neither the Act nor the Rules provide for separate insurance merely because the cover policy provides a column in this regard for insurance of trailer which may be registered for commercial purpose would not make it mandatory upon the tractor owner to pay insurance premium for trolley or trailer being used for agriculture or domestic purpose or for his own use under the provisions of the Act as neither the Act nor Rules provide for insurance for use of trailer for agriculture or personal purpose.
If hypothesis of the Insurance Company that a trailer has to be separately insured in every circumstance is accepted then every agricultural equipment attached with the tractor to trail it including a trailer or trolley would require a separate insurance for which there is no provision made in the Act by the legislature.
India is an agricultural country whose farmers are poor. The legislature in its wisdom did not think it prudent to cover the agricultural equipments including trolley or even a trailer being used for agricultural purposes under the insurance policy unless proved otherwise that it is or was being used for commercial purpose for the reason that use of Trolley/trailer & tractor combination by farmers to carry grains/fertilizer etc. for domestic and agricultural purposes cannot be considered as it commercial purpose and saddled with liability of insurance as a commercial vehicle such as "goods carriage". Further, after imposition of ceiling the farmer's land had been reduced and no farmer can afford a tractor if he cultivates his agricultural land only. He can render his services along with tractor to other farmers to help in their cultivation may be for some consideration.
As regards use of trolley/trailer for domestic purpose is concerned, it all depends upon the intention of the user and its actual use. Such tractor-trolley attachment is put to particularly when the tractor is registered as motor vehicle and if a trailer attached with the tractor carries agricultural produce for sale in 'Mandi' or for any other commercial purpose without trolley being registered for commercial purpose and insured separately for this purpose, it would be in violation of the terms and conditions of the insurance policy.
In case of a dispute about the use of the trolley, for domestic purpose or for commercial purpose the onus would be upon the person/party which disputes that tractor-trolley combination was being used for commercial purpose at the relevant time of accident and not domestic or for agricultural purpose. In our considered opinion, the trolley is liable to be insured if it is used for commercial purposes and not for agricultural or domestic purpose, therefore, the insurance of trolley/trailer attached to a tractor depends upon the intention and its actual use, therefore, it will not take away the liability of the Insurance Company until and unless it is proved that the trolley was being used for commercial purposes. If the tractor is not insured for commercial purposes, the trolley attached to it or any other vehicle acquires the status of the vehicle to which it is attached i.e. for domestic or agricultural purposes etc. In the instant case, the appellant had not discharged its burden of proof that trolley/tractor attached with trailer was-
(i) on public road at the time of accident; and
(ii) it was being used for commercial purpose.
There is no evidence on record from which it could be established by the appellant-United India Insurance Company Ltd. that the tractor-trolley was in fact being used on public road for commercial purposes at the relevant time. The specific case of the appellant is that trolley attached with the tractor in question is said to have been loaded with logs in the jungle and when the tractor was started, one of the logs fell upon Jagdish, who was standing near the stationary tractor/trolley. He died due to the injury caused by the fall of wooden log from the tractor-trolley.
The Tribunal has relied upon the evidence of P.W.2 in its judgment from which it appears that tractor-trolley was not being used for commercial purpose and no contra evidence has been adduced by the appellant showing that in the instant case the tractor was being used for commercial purposes.
If the tractor attached with the trolley was to be used for transportation of wooden logs from the jungle, which is an agriculture produce for sale or commercial purpose, then the appellant ought to have established to whom the wooden logs were being delivered and for what purpose, otherwise in absence of any such evidence for rejecting the claim of the appellant it has to be held that tractor being a motor vehicle registered and insured for agricultural purpose was being used for transportation of agricultural goods i.e. the logs on trolley attached with it for domestic use.
It is clear from the provisions of the Act and Rules framed under the Motor Vehicles Act that once the trolley attached with the tractor has become part of the tractor, it does not require a separate insurance under Section 146 of the Act but only a separate registration in case where the tractor/trolley combination is being used for commercial purpose. The accident in the instant case is said to have taken place when one of the wooden log loaded on the trolley fell upon Jagdish, who succumbed to the injuries caused by fall of the said log. In fact Jagdish was standing by the side of the trolley and neither was a passing on it nor the accident took place on a public road. The owner of the tractor had a valid papers i.e. registration, permit and fitness certificate etc. and its driver also was possessing valid and effective driving licence, therefore, in the facts and circumstances of the case, the appellant Insurance Company has rightly been found liable to pay amount of compensation as per the award.
The appellant Insurance Company has failed to establish that tractor-trolley was being used as a commercial vehicle for commercial purpose at the time of accident and the accident had occurred on a public road.
As stated above, the Apex Court in the case of National Insurance Co. Ltd. versus V. Chinnamma & others (surpa) has left open the question as to whether the tractor becomes a good vehicle when a trailer has been attached to it.
The law cited by the counsel for the appellant is not applicable to the facts of this case. In our considered opinion, the Tribunal has not committed any error in law or on facts in holding that appellant is liable to pay the amount to the claimants under the award.
For all the reasons stated above, the appeal is dismissed.
Statutory amount deposited by the appellant in this Court be remitted to the Tribunal concerned within two weeks from today for adjustment and disbursement to the claimants in accordance with the award.
Dated 6.3.2013 CPP/-