Andhra HC (Pre-Telangana)
Oriental Insurance Co. Ltd. vs Janarasupalli Kotiratnamma And Ors. on 27 August, 1999
Equivalent citations: 2001ACJ2131
JUDGMENT A. Gopal Reddy, J.
1. All these appeals by the insurance company arise out of the common orders and decrees dated 22.10.1994 in three batches of petitions, i.e. (1) O.P. Nos. 10, 11, 12 and 14 of 1993; (2) O.P. Nos. 13 and 65 of 1993; and (3) O.P. Nos. 15 and 16 of 1993 on the file of I Additional District Judge-cum-Motor Accidents Claims Tribunal, Karim-nagar. As the question of law involved in all these appeals is one and the same, I propose to dispose them of by this common judgment.
2. C.M.A. Nos. 30, 32, 31 and 34 of 1995 which arise out of O.P. Nos. 10, 12, 11 and 14 of 1993 respectively are filed by the same claimants. O.P. No. 10 of 1993 is filed under Section 166 of the Motor Vehicles Act (for short 'the Act') and O.P. No. 12 of 1993 is filed under Section 140 of the Act for the death of Sreenu s/o claimant No. 1 in the above O.Ps. O.P. Nos. 11 and 14 of 1993 are filed under Sections 166 and 140 of the Act (Sic.) the husband of the respondent No. 1 herein and father of respondent Nos. 2 and 3 herein. C.M.A. Nos. 33 and 37 of 1995 arise out of O.P. Nos. 13 and 65 of 1993 filed under Sections 166 and 140 of the Act, by the wife and two sons and a daughter, for the death of Subba Rao. Similarly, C.M.A. Nos. 35 and 36 of 1995 which arise out of O.P. Nos. 15 and 16 of 1993 filed under Sections 166 and 140 of the Act respectively by the husband and daughter for the death of Marthamma, w/o respondent No. 1 herein.
3. The facts leading to the filing of the O.Ps. are as follows: On 14.12.1991 the deceased Janarasupalli Veeraiah and his son Sreenu along with Subba Rao and Marthamma went for coolie work to the respondent Nos. 1 and 2 in all the O.Ps. to cut the tobacco in the fields. After cutting the tobacco, they loaded the same in the trailer bearing registration No. AP TV 739 which was attached to tractor bearing No. AP 15 T 8685. The deceased were travelling in the same tractor-cum-trailer for the purpose of unloading and processing the tobacco in the house of R-1 and R-2. The respondent No. 1 is the driver and the respondent No. 2 is the owner of the tractor. The tractor is insured with the respondent No. 3 insurance company. While proceeding to the house around 11 a.m. the driver drove the tractor in rash and negligent manner through the fields. Due to that the trailer came into contact with live electrical line and the deceased died on the spot. Thus, the accident occurred due to negligence of the driver of the tractor. The legal representatives of the deceased filed the above O.Ps. claiming compensation both under Sections 166 and 140 of the Act.
4. The driver and owner of the vehicle remained ex parte.
5. The respondent No. 3 insurance company filed separate counters denying all the allegations. It is pleaded that the trailer was not at all insured with it and as the deceased who were sitting in the trailer came into contact with live electrical wire and died, the insurance company is not liable to pay any compensation.
6. To prove the claims, the claimant No. 1 in O.P. Nos. 10, 11, 12 and 14 of 1993 examined herself as PW 1 and got marked Exhs. A-1 to A-4. No witness was examined on behalf of the insurance company, but, Exh. B-l, policy was marked on behalf of the insurance company. Similarly, the claimant No. 1 in O.P. Nos. 13 and 65 of 1993 examined herself as PW 1 and got marked Exhs. A-1 and A-2. No witness was examined on behalf of respondent but Exh. B-1 policy was marked on behalf of the insurance company. The claimant No. 1 in O.P. Nos. 15 and 16 of 1993 examined himself as PW 1 and got marked Exhs. A-1 and A-2. No witness was examined on behalf of the insurance company, but Exh. B-1 policy was got marked.
7. The learned Tribunal after analysing the evidence, oral and documentary, adduced by both parties, came to the conclusion that the accident occurred due to negligence of the driver of the tractor and awarded a sum of Rs. 40,000 for the death of Sreenu in O.P. Nos. 10 and 12 of 1993 including the compensation awarded under no fault liability and the Tribunal awarded a sum of Rs. 68,000 including the compensation awarded under no fault liability, for the death of Veeraiah in O.P. Nos. 11 and 14 of 1993. Similarly, in O.P. Nos. 13 and 65 of 1993 which were filed for the death of Subba Rao, the learned Tribunal awarded Rs. 80,000 including the compensation awarded under the no fault liability and Rs. 50,000 in O.P. Nos. 15 and 16 of 1993 which were filed for the death of deceased Marthamma.
8. Mr. K.L.N. Rao, learned Standing Counsel appearing for the insurance company contended that admittedly the tractor was insured, but the trailer in which the deceased were travelling was not insured along with the tractor, therefore, the insurance company is not liable to pay the compensation including under no fault liability. He further contended that unless the insurance company undertakes to indemnify the owner by insuring the trailer, no liability can be fastened on the insurance company merely because the trailer was pulled by the tractor. He further contended that the trailer is also a motor vehicle as defined under Section 2(28) of the Act and the same is liable to be insured as per Sections 146 and 147 of the Act. In support of his contentions, he has relied upon the judgments in Oriental Insurance Co. Ltd. v. N. Chandrashekara and Parsottambhai Kanbhai v. Panchiben 1977 ACJ 441 (Gujarat). On the other hand, learned counsel for the respondents-claimants contends that the tractor which is attached to the trailer and which is pulled by the tractor constitutes a goods vehicle and once the tractor is insured, it is immaterial whether the trailer is insured or not and if any accident occurred due to the use of the said tractor-cum-trailer, the insurance company cannot escape from its liability. In support of his contentions, he relied upon judgments in New India Assurance Co. Ltd. v. Ansuya 1989 ACJ 400 (AP) and Divisional Manager, New India Assurance Co. Ltd. v. Tumu Gurava Reddy . He further contended that no separate insurance is required for the trailer as it is pulled by the tractor which was insured with the insurance company. Learned counsel further submits that admittedly the accident was occurred on account of rash and negligent driving of the driver of the tractor and the coolies who were travelling in the trailer came into contact with the live electrical wire and died on the spot. Hence, the insurance company is liable to pay the compensation in view of the policy insuring the tractor.
9. In view of the rival contentions of the parties, the point that arises for consideration is whether the trailer is also a motor vehicle, if only both are insured the insurance company would be liable against claims arising out of the use of tractor and trailer or not.
10. It is relevant to refer to the definitions of the words 'motor vehicle', 'tractor' and 'trailer' as given in Sub-sections (28), (44) and (46) of Section 2 of the Act.
2 (28) '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 includes a chassis 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 thirty-five cubic centimetres."
"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 roadroller."
"(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.
11. The Karnataka High Court in the case of N. Chandrashekara , set aside the order passed by the Tribunal in which the Tribunal held that as the trailer cannot move itself, the non-insurance of the trailer would not take away the liability of the insurer of the tractor. While setting aside the order passed by the Tribunal, Karnataka High Court held thus (para 5):
It is patent that in view of the definition of a 'motor vehicle' even a trailer must be deemed to be a motor vehicle. Section 94 lays down that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter. As a trailer is also a motor vehicle, the statute requires that it should also be insured before it can be used in a public place. As a trailer can move only if it is drawn by a tractor and if it is to be held that the insurer of the tractor is liable to indemnify the owner of the tractor as well as the trailer for any compensation payable on account of an accident arising out of the use of both tractor and trailer, even if the trailer is not insured, then the statutory provisions requiring even a trailer to be insured becomes redundant. An interpretation which would render some provisions of the statute redundant should be avoided.
12. In Parsottambhai Kanbhai's case 1977 ACJ 441 (Gujarat), their Lordships Justice D.A. Desai and Justice A.M. Ahmadi (as he then was) held that as the trailer is included in the expression 'motor vehicle' it was required to be insured and the law imposes an obligation for taking out insurance against the third party risks in respect of a motor vehicle, it became necessary to take insurance in respect of the tractor and trailer. Refusing the contention of the insurance company that the trailer being not a prime-mover, not having locomotion, the insurance company of the trailer would not be liable as the accident occurred when the trailer was being pulled by the tractor and the driver of the tractor was shown to be negligent. It is a very interesting argument for this reason that if Mr. Chhatrapati is wholly right, then the trailer need not be insured at all. A trailer can never be driven by itself. It has no locomotion. It can be attached to a tractor. It can be attached to something which can pull it. The driver would always be on that part of the vehicle which provides motion to the trailer. Therefore, the trailer by itself cannot be used in a public place and by its use, no accident can occur and if some accident occurs, it would not be on account of the fault of the driver because the trailer would have no driver of its own. We fail to follow and where to go. Therefore, it is not possible to accept the contention of Mr. Chhatrapati and it must be negatived.
13. In Oriental Insurance Co. Ltd. v. Hanumantappa , the Division Bench of Karnataka High Court after considering Sections 2(8), 2(30), 2(32) and 95 of Motor Vehicles Act, 1939 [Sections 2 (14), 2(44), 2(46) and 147 of 1988 Act] held that when a tractor-trailer together constitute a transport vehicle, i.e., a goods vehicle covering of tractor-trailer under commercial vehicle tariffs support this conclusion. The Division Bench further held that the insurance company with which tractor and trailer attached thereto are insured is liable to pay compensation in respect of death of or bodily injury to the employee travelling in the tractor-trailer. Similar view was taken by this court in Ansuya's case 1989 ACJ 400 (AP).
14. The Hon'ble Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), while interpreting Section 96 of Motor Vehicles Act (4 of 1939) (Section 149 of 1988 Act) observed that the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. Section 146 of the Motor Vehicles Act, 1988, makes it obligatory on the part of the owner of a motor vehicle that unless he insures the vehicle, the same cannot be used in public place. Admittedly, in the present cases, the labourers who were travelling in the trailer sitting on the tobacco contacted with live electrical wire and said trailer was not insured with the insurance company as per Exh. B-1 policy. The Tribunal in O.P. No. 10 of 1993 and batch held that though the trailer appears to have not been insured, it is attached to the tractor which was insured with the insurance company and it was the tractor which moves and drags the trailer and, therefore, the accident caused by the tractor, it must be deemed that it included the trailer also. In the case of Ansuya 1989 ACJ 400 (AP), this court has not considered the effect of not insuring the trailer with the insurance company. But in fact the question which fell for consideration was whether the tractor was used for agricultural purpose or not and when the tractor-cum-trailer, i.e., goods vehicle is insured for the purpose of agricultural operations, carrying the coolies for loading and unloading is incidental to the purpose of agricultural operations. This Hon'ble Court held that carrying coolies engaged for agricultural operations in a goods vehicle and there is admittedly a contract of insurance the insurance company is liable. The Gurava Reddy's case , cited by the learned counsel for the respondents-claimants has no relevancy to the facts of the present cases. In fact the said judgment is contrary to the law declared by the Apex Court in Shankarayya v. United India Insurance Co. Ltd. .
15. In view of the foregoing discussion, it must be held that once the trailer which is not insured with the insurance company and the deceased who were travelling in the said trailer met with an accident and died, the insurance company by whom the tractor is insured is not liable as the accident would not be caused by tractor but a goods vehicle, i.e., trailer. If both the tractor and trailer are insured, the insurer would be liable to indemnify the owner against the claims arising out of use of tractor and trailer. This view of mine is in conformity with the other statutory provisions which require the trailer also to be insured under Sections 146, 147 and 149 of the Act. Admittedly, under Exh. B-1 policy, the insurance company has not undertaken any liability for the trailer attached to the tractor. Therefore, the insurance company cannot be fastened with any liability.
16. In the result, all the appeals are allowed and the judgments and awards of the Tribunal are modified by setting aside that portion by which the appellant insurance company is also made liable to pay the compensation. The rest of the judgments and awards against the owner and driver are not disturbed.