Rajasthan High Court - Jodhpur
New India Assurance Company Ltd vs Nathu Lal And Ors on 16 April, 2021
Equivalent citations: AIRONLINE 2021 RAJ 23
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
(1 of 7) [CMA-645/2001]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Misc. Appeal No. 645/2001 New India Assurance Company Ltd, Branch Manager, Chittorgarh through Divisional Manager, New India Assurance Company, Abhey Chambers, Jalori Gate, Jodhpur
----Appellant Versus
1. Nathu Lal S/o Moti Lal Rawat Menna,
2. Smt. Motiya Bai w/o Nathu Lal Rawat Meena,
3. Mohanlal s/o Nathulal Rawat Meena No.3 natural guardian mother St.Motiya Bai, All resident of Village Rambavali Tehsil Chotti Sadari, District Chittorgarh .......Claimants/respondents
4. Surendra Kumar S/o Harish Ji Rajora, r/o behind Industrial Area, Near Old Post Office, Nimbahera, District Chittorgarh.
5. Laxmi Narayan s/o Gajja Ji Khatik, r/o Mewati Mohalla, Nimbahera, District Chittorgarh
----Defendants/Respondents For Appellant(s) : Mr. Anil Bachhawat For Respondent(s) : Mr. Abhinav Jain HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Order Reserved on : 25/03/2021 Pronounced on : 16/04/2021 The appellant-Insurer has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act') to challenge judgment and award dated 20.03.2001, passed by Motor Accident Claims Tribunal, Pratapgarh (for short, 'learned Tribunal') in Civil Suit No.84/1997 titled as Nathulal & Ors. Vs. Surendra & Ors.". The learned Tribunal, by the impugned judgment and award, while adjudicating case of the claimants- (Downloaded on 20/04/2021 at 08:13:17 PM)
(2 of 7) [CMA-645/2001] respondents, has quantified and passed a award for compensation to the tune of Rs.1,80,000/- under various heads, while holding the appellant-Insurance Company liable to pay the entire amount of compensation.
The facts, opposite for the purpose of this appeal, are that respondent-claimants preferred the claim petition, inter-alia, with the submission that on the fateful day of 10.05.1997, in the evening when deceased Chaina Ram, while sitting on the rear side of bonat (mudguard) of the tractor No.RJ-09/R-2572 which was coming to his village then, driver of the tractor drove the tractor rashly and negligently and due to jerk, Chaina Ram fell down and a big wheel of the tractor was passed over his head, as a result of which, Chaina Ram succumbed to death. The claimants have claimed a sum of Rs.7,56,000/- as compensation for the accidental death of Chaina Ram.
As per written statement submitted by the non-applicants No. 1 and 2, the deceased Chaina Ram was not working under their command and he forcefully boarded the tractor and due to his own mistake, fell down from the tractor. Insurance Company has denied its liability to pay the compensation and as per Insurance Company, right owner of the vehicle has not been made a party. It was also stated that premium has not been paid towards labour sitting on the tractor and, therefore, the insurance company is not liable to pay the compensation. (Downloaded on 20/04/2021 at 08:13:17 PM)
(3 of 7) [CMA-645/2001] On the basis of the pleadings of the parties, the Tribunal has framed as many as six issues which are reproduced here as under:-
bl ekeys esa fuEu fook/;d cuk;s x;s gSa % 1- vk;k fnukad 10-5-97 dks foi{kh la[;k&2 Jh y{ehukjk;.k }kjk VªsDVj ua0 vkj0ts0&09@vkj&2572 o VªkWyh ua- vkj0ts &09@bZ&1674 dks vR;f/kd rst xfr o ykijokgh iwoZd pykus ds dkj.k Jh psukjke ds mij ifg;k fQjus ls mldk e`R;q gks xbZ\
-----------------izkFkhZx.k 2- vk;k izkFkhZx.k foi{khx.k ls la;qDr ,oa i`Fkd i`Fkd :i ls izfrdj dh jkf"k :0 7]56]000@& izkIr djus ds vf/kdkjh gS\
------------izkFkhZx.k 3- vk;k e`rd Jh psujke mDr VªsDVj ij etnwjh dh gsfl;r ls csBk gksus ls Dyse izkFkhZx.k dks lquokbZ dk vf/kdkj bl U;k;ky; dks ugha gksdj deZdkj {kfriwfrZ vk;qDr dks lquus dk vf/kdkj gS \
------------foi{kh la03 4- vk;k VªsDVj o VªkWyh ij vU; lokfj;ka cSBus dk izhfe;e okgu Lokeh }kjk vnk ugha djus ls foi{kh chek daiuh mDr nq?kZVuk ds fy;s ftEesnkj ugha gS \
-----------------fo0la0 03 5- vk;k okgupkyd ds ikl okgu pykus dk oS/k vuqKki= ugha gksus ls Dyse izkFkZuk i= foi{kh la0 03 ds fo:) fujLr gksus ;ksX; gS \
-----------fo0la0 03 6- lgk;rk D;k gksxh \ In support of their claim, in evidence, the statement of Nathu was recorded as AW-1, and the statement of Shanti Lal was recorded as AW-2. On behalf of the defence, the statement of Surendra was recorded NAW-1, statement of Laxminarayan was recorded as NPW-2 (sic NAW) and the statement of Ravindra Kumar was recorded as NAW-3 (DW-3).
(Downloaded on 20/04/2021 at 08:13:17 PM)
(4 of 7) [CMA-645/2001] Upon conclusion of the evidence, learned Tribunal proceeded to hear final arguments and decided Issue No.1 relating to rash and negligent driving in favour of respondent-claimants and against the non-applicants. Likewise, Issue No.2 in regard to entitlement of the claimants to receive the compensation in the sum of Rs.7,56,000/- was also decided in favour of respondents- claimants in the manner that they have held entitled for compensation at Rs.1,80,000/-. Adverting to Issue No.3 regarding jurisdiction of the Tribunal, as it was alleged that the deceased was sitting on the tractor as a labourer. This issue was also decided in favour of the claimants. Issue No.4 regarding liability of the insurance company was decided against the insurance company, while observing that the insurance company cannot be escaped from its liability to pay the compensation. Issue No. 5 regarding holding of a valid and effective license by the driver of the tractor was decided against the non-applicants and in favour of the claimants. Issue No. 6 regarding relief was decided by the learned Tribunal has held the claimants to receive the amount of compensation in the sum of Rs.1,80,000/-.
For ready reference, the order dated 20.03.2001 is reproduced here as under:-
&%% vkns"k %%% vr% ;g Dyse izkFkhZ la0 1 o 2 ds i{k esa ,oa foi{khx.k ds fo:} la;qDr ,oa i`Fkd i`Fkd :i ls #- 1]80]000@& {kfriwfrZ ds :i esa fn;s tkus gsrq fMdzh fd;k tkrk gSA izkFkhZ la03 eksguyky ds lEcU/k esa Dyse [kkfjt fd;k tkrk gSA izkFkhZ la0 1 o 2 mDr jkf"k ij rkjh[k Dyse fnukad 11-9- 1997 ls rk olwyh rd bl jkf"k ij 9 izfr"kr okf'kZd dh nj (Downloaded on 20/04/2021 at 08:13:17 PM) (5 of 7) [CMA-645/2001] ls C;kt Hkh izkIr djus ds vf/kdkjh gksaxsA uks QkYV ykbCyhVh ds vUrxZr tks jkf"k tek djokbZ xbZ gS og blesa ls ckn nh tk;sxhA mijksDr jkf"k dk caVokjk bl izdkj ls fd;k tkrk gS fd ukFkqyky o eksfr;kackbZ izR;sd mijksDr esa ls 50 & 50 izfr"kr jkf"k izkIr djsxh vkSj nksuks gh mUgsa izkIr gksus okyh jkf"k esa ls 50 & 50 izfr"kr jkf"k vkxkeh 10 o'kZ ds fy;s fdlh jk'Vªh;d`r cSad esa tek j[ksxh vkSj C;kt dh jkf"k izkIr djrh jgsxhA^^ Heard learned counsel for the parties and perused the material available on record including the judgment and award passed by Tribunal concerned.
Arguing on this appeal, learned counsel for the appellant - Insurance Company has essentially assailed the impugned judgment and award passed by learned Tribunal on Issue No. 4, against the Insurance Company which held the company liable to pay compensation. It is further submitted by the learned counsel that deceased was travelling on bonut (mudguard) of the tractor, which could be used only by one person i.e. Driver. According to Ravindra Kumar, NAW-3, Administrative Officer of Insurance Company, proved that the risk of only one person, i.e., driver, who is covered under the policy and any other passengers of the tractor were not covered by such policy. This fact is also proved from the Cover Note of Insurance Policy which is marked as Ex.9. It is further submitted that in the present case deceased travelled in the tractor as a passenger which was in breach of the policy condition. It is further submitted that as per Registration (Downloaded on 20/04/2021 at 08:13:17 PM) (6 of 7) [CMA-645/2001] Certificate Ex.7 tractor was used for agriculture purposes and not for commercial purpose. In support of his arguments, learned counsel has relied upon the judgment of the Hon'ble the Supreme Court in case of National Insurance Co. Ltd. Vs. V. Chinnamma and Ors. reported in 2004 AIR SCW 5116. Lastly, learned counsel for the appellant prays that this appeal may kindly be allowed and the impugned judgment and award may kindly be set-aside and the claim petition may kindly be ordered to be dismissed as against the appellant.
Per contra, learned counsel for the respondent-claimants, submits that as per the cover note of Insurance Policy (Ex.9), it is clearly mentioned that the tractor was insured for the use of agricultural as well as for commercial purpose. It is also pointed out that the tractor in question was covered by comprehensive policy which is clearly mentioned on the cover note of insurance policy (Ex.9), therefore, the judgment and award is rightly passed by learned Tribunal and prayed that the appeal may be dismissed.
Upon hearing learned counsel for the appellant, in the Court's opinion, the argument of learned counsel cannot be sustained because learned Tribunal has decided the case on the basis of material available on record. Therefore, it is justified not to interfere in the said conclusion of the Tribunal.
In case of National Insurance Co. Ltd. (supra) cited by learned counsel for the appellant, the deceased was sitting in the trailer which was attached to the tractor; and the tractor was only insured for agriculture purposes, not for commercial purpose, (Downloaded on 20/04/2021 at 08:13:17 PM) (7 of 7) [CMA-645/2001] therefore, no liability was fastened on Insurer where as in the present case deceased was sitting on the rear side on the bonut (mudguard) of the tractor and as per the cover note (Ex.9) of insurance policy, tractor was insured for both agricultural and commercial purpose. Also in cover note, it is mentioned that the risk of only one person, i.e., driver is covered by Insurance policy and the deceased was the person other than the driver who was sitting on the bonut (mudguard) of the tractor. Therefore, it is violation of the policy condition and Insurance company is not ultimately liable but it does not mean that the insurer did not have initial liability at all. The settled practice, which has now virtually cystallized into a law and in the consistent view taken in that regard by the Hon'ble Supreme Court in cases of National Insurance Company Ltd. Vs. Swarna Singh & Ors., reported in (2004) 3 SCC 297 , Mangla Ram Vs. Oriental Insurance Company Ltd. reported in (2018) 5 SCC 656 and Shivaraj Vs. Rajendra & ors. reported in (2018) 10 SCC 432. This appeal deserves to be partly allowed and disposed of with a direction to the appellant Insurance Company to first make payment of the entire amount of compensation and then to recover the same from the owner of the offending vehicle (Respondent no.4) in accordance with law.
Resultantly, with the observations foregoing, this appeal is disposed of accordingly.
(DEVENDRA KACHHAWAHA),J 12-/Bharti (Downloaded on 20/04/2021 at 08:13:17 PM) Powered by TCPDF (www.tcpdf.org)