Madhya Pradesh High Court
Manoj vs Neetu on 16 December, 2016
(1) MA 531/2006
HIGH COURT OF MADHYA PRADESH : BENCH GWALIOR
SINGLE BENCH: JUSTICE S.K.AWASTHI
MISCELLANEOUS APPEAL NO. 531/2006
Manoj
vs.
Neetu & others
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Shri Anand Gupta, learned counsel for the appellant.
None for the respondents No.1 and 2 though served.
Shri S.N.Gajendragadkar, learned counsel for the respondent
No.3/ Insurance Company.
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JUDGMENT
(16.12.2016) This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act, 1988 (for brevity, the 'Act') against the award dated 6.1.2006 passed by Member, Motor Accident Claims Tribunal, Chachoda District Guna (for brevity, the 'Tribunal') in Claim Case No. 70/2003. By the impugned award the Tribunal has awarded a total sum of Rs.20000/- with interest to the claimant for the injuries sustained by him in a motor accident.
2. Claimant Manoj had filed a claim petition under Section 166 of the Act inter alia claiming compensation of Rs.21,60,000/- on the ground that he was travelling in a tractor bearing No. MP08-D-3027, owned by respondent No.2 and driven by respondent No.1 and insured with the respondent No.3. As per the appellant-claimant, the tractor was driven by respondent No.1 in a rash and negligent manner, as a result the tractor turned turtle and he sustained grievous injuries.
3. Learned counsel for the appellant submitted that the appellant sustained fracture in jaw resulted grievous injuries. Looking to the injuries sustained by the appellant, the impugned award is on the lower side which deserves to (2) MA 531/2006 be enhanced.
4. Respondent No.3-National Insurance Company has filed cross-objection under Order 41 Rule 22 of the Code of Civil Procedure on the ground that the appellant was travelling on the mudguard of the offending tractor for which no premium was charged and the driver was not possessing valid driving licence at the time of accident. The tractor has sitting capacity of driver alone and under the law the risk of person travelling on mudguard is not covered under the insurance policy, hence, the insurance company ought not to have been saddled with the liability for payment of amount of compensation. Therefore, the Tribunal erred in directing the insurance company to first pay the amount of compensation to the claimant and then to recover the same from the owner and driver of the offending vehicle.
5. The Tribunal awarded lump sum amount of Rs.20000/- by way of compensation to the appellant. The accident occurred on 24.6.2001 and x-ray was done on 31.7.2001, i.e., after a period of 35 days. The appellant has not filed any disability certificate nor examined any doctor to show that he has suffered permanent disability. Further, on account of delay of 49 days in lodging of FIR the M.L.C. was also delayed. The appellant did not file any medical bill regarding his treatment. On cumulative consideration of these circumstances, the impugned award to the extent it relates to appellant Manoj does not deserve any interference. Hence, the appeal filed by appellant-Manoj being devoid of any merit is hereby dismissed.
6. As regards liability of insurance company is concerned, appellant-Manoj deposed in examination-in-chief that at the time of accident he was sitting on tractor, which was being (3) MA 531/2006 driven by the respondent No.1. This fact has been denied by the respondent No.1-Neetu (Driver) in his examination- in-chief but he admitted in his cross-examination that a criminal case is pending against him in the Court of Chachoda regarding the accident in question. He also admitted that he was not possessed with any driving licence. As per the insurance cover note Ex.P/5, the tractor was insured for agricultural purpose and the premium for risk of driver alone is paid. Since the passenger is not permissible in a tractor, therefore, the insurance company cannot be held liable to indemnify the passenger travelling in a tractor. Section 149 (2)(a)(i) of the Motor Vehicles Act provides that no sum shall be payable by insurer if there has been a breach of specified condition of the policy, namely, the condition excluding the use of the vehicle.
7. In the cases of Aarif and another vs. Urmilabai and others, 2004 ACJ 1496; United India Insurance Co.Ltd. vs. Kamodi Bai and others, 2007 ACJ 2031; and, Nathu Singh Kushwaha and another vs. Narayan Singh and others, 1 (2011) ACJ 740, this Court has held that mudguard of the tractor is not meant for carrying passenger and thus there is no statutory requirement to cover the risk of gratuitous passenger traveling on a tractor.
8. A Division Bench of this Court in the case of National Insurance Company vs. Jagdish and others, 2004 (1) TAC 165 (MP), has clearly held that if the injured was travelling on a tractor then the liability cannot be fastened on the insurance company. It has been held that the tractor cannot be used for carrying passenger and sitting capacity (4) MA 531/2006 of the tractor is only "one" driver. In the said case, the deceased was found travelling in the tractor and liability imposed upon the insurance company has been interfered and it has been held by the Division Bench of this Court that in such case insurance company is not liable to pay the compensation. The same view has been taken in the matter of liability of insurance company in the case of Phool Singh vs. Pankhi & others, 2004 ACJ 843 .
9. Keeping in view the legal principles laid down by the Division Bench in the cases referred to herein above and considering the fact and circumstances of the present case, it is clear that the insurance company cannot be held liable for payment of compensation as appellant-Manoj is found to be travelling on the mudguard of the tractor.
10. In view of aforesaid, the cross-objection filed by the respondent No.3-National Insurance Company vide I.A.No. 14350/2006 is allowed to the extent that the liability for paying compensation shall be on the owner and driver of the offending vehicle and insurance company shall stand exonerated from its liability.
11. The award dated 6.1.2006 passed in Claim Case No.70/2003 is modified to the extent indicated above. The appeal is disposed of. Both the parties shall bear their own costs.
(S.K.Awasthi) Judge (yog)