Punjab-Haryana High Court
Smt. Chameli Devi And Others vs Mukesh Alias Kalu And Others on 23 July, 2014
1
FAO No.1187 of 1998
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.1187 of 1998
Date of Decision:23.07.2014
Smt. Chameli Devi and others
.Appellants
Versus
Mukesh alias Kalu and others
.Respondents
CORAM: HON'BLE MS. JUSTICE NAVITA SINGH
Present: Mr. Ashok Jindal, Advocate for
Mr. Sanjay Mittal, Advocate for the appellants.
Mr. Bahadur Singh, Advocate for respondents No.1 & 2.
Mr. Suvir Dewan, Advocate for respondent No.3-
United India Insurance Company Ltd.
NAVITA SINGH, J.
1. Learned counsel for the parties have been heard.
2. This appeal is preferred against the award dated 20.2.1998 passed by Motor Accident Claims Tribunal (Tribunal for short), Rewari, whereby the claim petition filed by the appellants was dismissed.
3. The case of the appellants was that Kartar Singh, husband of appellant No.1 and father of other appellants, died in a road accident, which took place on 26.3.1994. On the said date, at about 8.30 p.m., the deceased was returning to his village from Rewari in a tractor bearing No.HR-36-2878, which was being driven by respondent No.1 in a rash and negligent manner. Kartar Singh fell down and was crushed under the wheel of trolley of the tractor. The vehicle was owned by respondent No.2 and was insured with respondent No.3. Compensation to the tune of Rs.10 lacs was claimed.
Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document 2 FAO No.1187 of 1998
4. Respondents No.1 and 2 filed a joint reply admitting the ownership of the tractor and its insurance but denying the allegations that Kartar Singh had fallen down and died on account of rash and negligent driving of the tractor by respondent No.1. It was Holi on the fatal day and lot of crowd gathered near the village. The deceased, without telling respondent No.1, alighted from the tractor and fell down because of his own negligence.
5. Respondent No.3 pleaded that there was violation of terms and conditions of the insurance policy and that respondent No.1 was not holding a valid driving licence at the relevant time. The appellants were also not admitted to be the legal representatives of deceased Kartar Singh. It was further pleaded that the deceased was a gratuitous passenger and was himself negligent and solely responsible for his death. The tractor was supposed to be used only for agricultural purposes and was not supposed to carry passengers.
6. The Tribunal framed the following issues: -
1. Whether the death of Kartar Singh was the direct result of motor vehicle accident which took place on 26.3.94 on account of rash and negligent driving on the part of the driver of tractor No.HR-36-2878?OPP
2. What is the amount to which the petitioners are entitled to as compensation and from whom?OPP
3. Whether the respondent No.3 is not liable to compensate the petitioners on the death of Kartar Singh for the reasons stated in the written statement?OPR
4. Relief.
7. Learned counsel for the appellants argued that the Tribunal had held under issue No.1 that the accident in question was caused because of the rash and negligent driving of the tractor by respondent No.1. Under issues No.2 and 3, compensation was assessed to the tune of Rs.3,03,000/- but it was further held that the tractor had been defined under Section 95 of the Motor Vehicles Act as a vehicle not meant for carrying passengers and that whosoever takes a ride Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document 3 FAO No.1187 of 1998 in a tractor would be doing it at his/her own risk. Since the deceased was travelling in the tractor, neither the driver nor its owner could be liable and if the tractor was insured, the Insurance Company also could not be fastened with any liability, as petition is not maintainable. The deceased was travelling on the mudguard of the tractor and, therefore, he was doing so at his own peril. Learned counsel for the appellants contended that the above said opinion of the Tribunal was not correct because so far as the liability is concerned, whether it would be of the owner or of the Insurance Company, was a matter inter-se between the insured and the insurer. The vehicle being insured, Insurance Company was liable to pay the compensation to the appellants and it could get a right to recover the same from the owner. The petition filed by the appellants was surely maintainable. He referred to the reference made by single Bench of this Court on 10.12.1999, whereby this very matter was sent to a Division Bench for deciding the issue, posed as under: -
"Whether in an accident in which death of or an injury to a passenger being carried on a tractor is caused, the claimants can or cannot claim compensation under the provisions of the Act from the driver and owner of the tractor."
8. A Division Bench of this Court decided the reference on 3.11.2000 in this case holding that the answer to the question referred to by the learned Single Judge was as under: -
"When an accident takes place resulting into death or injury to a passenger being carried on a tractor, claim can be maintained by the injured or the dependents of the deceased (as the case may be) for compensation under the provisions of the Act against driver and owner of the tractor"
9. Learned counsel for the respondent had nothing to say otherwise. As per the judgment of the Division Bench, the dependents of the deceased or an injured, as the case may be, were liable to be compensated and their claim was maintainable against the driver and owner of the tractor. Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document 4 FAO No.1187 of 1998
10. Learned counsel for the Insurance Company contended that in view of the said judgment, the Insurance Company was not liable. Learned counsel for the appellants maintained his stand that where the vehicle is insured, the primary liability is of the Insurance Company. So far as the maintainability of the claim laid by the appellants, the same was set at rest by the judgment of the Division Bench. The claim was maintainable against the driver and owner of the tractor and not against the Insurance Company.
11. Now coming to the fact whether in this particular case, the appellants would be entitled to any compensation or not, which is to be seen in the facts and circumstances of this case. It has come in evidence that the deceased was travelling on the mudguard of the tractor. He definitely did so at his own peril because it is a matter of common knowledge of one and all that the tractor is a wobbly vehicle and any person sitting on it has to face jerks especially on the kinds of road we have in our country. Any person sitting on the mudguard of the tractor surely knows that there will be many jerks and shakes on the way and there is nothing proper even to hold as support from the mudguard. Thus if the deceased chose to sit on the mudguard, he did so entirely at his own risk. Jhuthar Singh, PW1 categorically stated that Kartar Singh was sitting on the mudguard of the tractor and fell down from there. He also admitted that there was a large gathering near the scene of accident celebrating Holi festival. The averment of respondents No.1 and 2 stood fortified that there was lot of rush due to festival and Kartar Singh alighted without informing the driver. Even otherwise, witness is real brother of the deceased and an interested witness and also an eye witness. Respondent No.1 appeared in the witness box and stated that the deceased was travelling in the tractor on the day of Holi and under the influence of liquor he had alighted from the tractor without informing him. No cross examination was conducted on that point and, therefore, his account to that Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document 5 FAO No.1187 of 1998 effect stood admitted. Only a suggestion was put to him that he was driving the tractor rashly and negligently, which he denied.
12. A question was put to Mukesh-respondent No.1 that he was facing trial on the criminal side, which he admitted. However, the fact of facing trial as an accused in relation to the accident in the criminal case, would not ipso facto establish any negligence on the part of respondent No.1. This fact has no bearing on the merits of the present case. It is, therefore, not established on record that the accident had taken place due to rash and negligent driving of the tractor by respondent No.1. Rather the defence of the latter that the former had got down from the vehicle of his own accord without informing the driver i.e. respondent No.1, is proved. The deceased was negligent in travelling on the mudguard of the tractor and did so at his own risk as already discussed above.
13. Learned counsel for respondents No.1 and 2 contended that even if the petition was maintainable against the said respondents on account of the judgment of the Division Bench passed on 3.11.2000, it cannot be said that the Company will not be liable because the vehicle being validly insured, the liability will be that of the Company. He relied on New India Assurance Company Vs. Kamla and others AIR 2001 S.C.1419. The reported case referred to by learned counsel for respondents No.1 and 2 is not applicable at all to the facts of the present case. In that case, the driver was not holding a valid driving licence and the Insurance Company was held liable to compensate the third party and was given a right to recover from the owner of the insured vehicle. Though it may be taken that in case breach of any of the policy conditions, the Insurance Company holds the primary liability and gets a right to recover from the insured, yet in the present case, the question is not whether the vehicle was being driven in contravention of the terms of the insurance policy but firstly whether respondent No.1 had caused the accident or not and secondly whether the petition was Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document 6 FAO No.1187 of 1998 maintainable against the Insurance Company in view of the judgment of the Division Bench of this Court in this particular case passed on the reference of learned Single Judge. In the case in hand, it has already been held above that the accident had not occurred on account of any negligence on the part of respondent No.1 and rather sole negligence of the deceased resulted in his death and further that the claim was not maintainable against the Insurance Company in view of the judgment dated 3.11.2000 where it was held by the Division Bench that in such case, the claim could be maintainable against the driver and owner of the tractor. Two points had been decided by Single Bench of this Court in The New India Assurance Company Ltd. Vs. Smt. Tara Wati and others 1994 (2) PLR 103, the first being that in case of use of a tractor neither driver nor owner can be held liable and if the tractor was insured then no liability could be fastened on the Insurance Company. Reference was made by the learned Single Judge in this case only on the point whether compensation would be claimed from the driver and owner of the tractor, meaning thereby that the absolvance of the Insurance Company from the liability was accepted. The Division Bench also considered only the point regarding liability of driver and owner and held that claim could be maintained against them.
14. Learned counsel for the appellants relied on New India Assurance Company Ltd. Vs. Asha Rani 2001 (4) RCR (Civil) 294. The said case is also different on facts and is even otherwise not required to be discussed as it has already been held above that the tractor was not being driven negligently by respondent No.1 and therefore in any case the petition was rightly dismissed by the Tribunal, though on different grounds.
15. As a sequel to the discussion made above, it is held that the accident had occurred due to the negligence of respondent No.1 in driving the tractor in question and the finding of the Tribunal in that regard is reversed. Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document 7 FAO No.1187 of 1998 However, so far as the maintainability of the claim is there, the same is maintainable against the driver and owner but not against the Insurance Company in this particular case.
16. The appeal is dismissed.
(NAVITA SINGH) JUDGE 23.07.2014 ishwar Whether to be referred to reporter: Yes Singh Ishwar 2014.07.28 14:39 I attest to the accuracy and integrity of this document