Rajasthan High Court - Jodhpur
United India Insurance Co. Ltd vs Natwarlal And Ors on 12 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:37048]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1695/2016
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, T.P. Claims
Hub, 74-A, Bhati N-Plaza, Pal Road, Jodhpur
----Appellant
Versus
1. Jayantilal s/o Shankarlal Mochi, resident of Mochi Bazar,
Kherwara, District Udaipur.
----Respondent Claimant
2. Kantilal Katara, s/o Shri Bhimji, resident Nalwa Phala
Lodhan, P.S. Sadar, Tehsil & District Dungarpur
----Respondent Driver
3. Smt. Champa Devi w/o Shri Somaji Kharadi.
4. Devilal s/o Shri Somaji Kharadi
5. Manilal s/o Shri Somaji Kharadi
6. Banshilal s/o Shri Somaji Kharadi
All residents of Adarsh Nagar, Dungarpur
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 1801/2012
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, Divisional
Office, 12-D Residency Road, Jodhpur
----Appellant
Versus
1. Laxman s/o Shri Haliya Menat, resident of village Nalwa,
P.S. Sadar, Tehsil and District Dungarpur.
----Respondent Claimant
2. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
3. Raju Kharadi s/o Shri Soma Kharadi, resident of
Adarshnagar, Dungarpur
----Respondent Owner
S.B. Civil Misc. Appeal No. 1816/2012
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, Divisional
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[2024:RJ-JD:37048] (2 of 24) [CMA-1695/2016]
Office, 12-D Residency Road, Jodhpur
----Appellant
Versus
1. Smt. Pushpa @ Munni w/o Late Sanjay Kumar.
2. Mst. Rajni d/o Late Sh. Sanjay Kumar (minor).
3. Mst. Kajal d/o Late Sh. Sanjay Kumar (Minor).
4. Mst. Megna d/o Late Sh. Sanjay Kumar (Minor).
Minors are represented through their Natural Guardian
Mother, Smt. Pushpa @ Munni
5. Smt. Sharda w/o Shri Shankarlal.
6. Shri Shankarlal s/o Shri Nathu Ji
All residents of Ajmeri Mohalla, near Baba Ramdeo Mandir,
Kherwara, District Udaipur.
----Respondnet Claimants
7. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
8. Smt. Champa Devi w/o Shri Somaji Kharadi.
9. Devilal s/o Shri Somaji Kharadi
10. Manilal s/o Shri Somaji Kharadi
11. Gopal s/o Shri Somaji Kharadi
12. Banshilal s/o Shri Somaji Kharadi.
13. Raju s/0 Shri Somaji Kharadi.
All residents of Adarsh Nagar, Dungarpur
----Respondent
S.B. Civil Misc. Appeal No. 1853/2012
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, Divisional
Office, 12-D Residency Road, Jodhpur
----Appellant
Versus
1. Smt. Rukmani Devi w/o Late Shri Chabilal Mochi, r/o Mochi
Bazar, Kherwara, District Udaipur.
2. Smt. Jasoda d/o Late Shri Chabilal w/o Shri Mahesh, r/o
Dungarpur.
3. Smt. Santosh d/o Late Shri Chabilal w/o Shri Vishnu ji
Mochi, r/o Aaspur, District Dungarpur.
4. Smt. Seema, d/o Late Shri Chabilal w/o Shri Rajesh ji
Mochi, r/o Udaipur.
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[2024:RJ-JD:37048] (3 of 24) [CMA-1695/2016]
5. Mst. Sapna d/o Late Shri Chabilal Mochi.
6. Govind s/o Late Shri Chabilal Mochi
Both r/o Mochi Bazar, Kherwara District, Udaipur
7. Smt. Laxmi d/o Late Shri Chabilal Mochi w/o Shri Bharat
Lal r/o Dungarpur
----Respondent Claimants
8. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
9. Smt. Champa Devi w/o Shri Somaji Kharadi.
10. Devilal s/o Shri Somaji Kharadi
11. Manilal s/o Shri Somaji Kharadi
12. Gopal s/o Shri Somaji Kharadi
13. Banshilal s/o Shri Somaji Kharadi.
14. Raju s/0 Shri Somaji Kharadi.
All residents of Adarsh Nagar, Dungarpur
----Respondent
S.B. Civil Misc. Appeal No. 1694/2016
United India Insurance Co. Ltd., Branch Office -Shastri Marg,
Dungarpur, through its Legally Constituted Authority, T.P. Claims
Hub, 74-A, Bhati N-Plaza, Pal Road, Jodhpur
----Appellant
Versus
1. Natwarlal s/o Shankarlal Mochi, resident of Behind Ramdev
Temple, Kherwara, District Udaipur.
----Respondent Claimant
2. Kantilal, s/o Shri Bhimji, resident Nalwa Phala Lodhan, P.S.
Sadar, Tehsil & District Dungarpur
----Respondent Driver
3. Smt. Champa Devi w/o Shri Somaji Kharadi.
4. Devilal s/o Shri Somaji Kharadi
5. Manilal s/o Shri Somaji Kharadi
6. Gopal s/o Shri Somaji Kharadi
7. Banshilal s/o Shri Somaji Kharadi.
8. Raju s/0 Shri Somaji Kharadi.
All residents of Adarsh Nagar, Dungarpur
----Respondent
For Appellant(s) : Mr. Jagdish Vyas for the Insurance
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[2024:RJ-JD:37048] (4 of 24) [CMA-1695/2016]
Company
For Respondent(s) : Mr. Pradeep Shah with
Ms. Geeta Panpaliya for the owner
and driver of the tractor-trolley
Mr. Bharat Singh Rathore for the
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved on: 06/09/2024 Pronounced on: 12/09/2024
1. The present misc. appeals have been filed by the appellant- Insurance Company, under Section 173 of the Motor Vehicles Act, 1988 ('MV Act') assailing the award passed by the learned Judge, Motor Accident Claims Tribunal, Dungarpur, ('Tribunal') vide order dated 30.05.2012 in MAC Case No. 279/2009 and 278/2009; 12.04.2016 in MAC Case No. 18/2012 and 19/2012; and 27.04.2012 in MAC Case No. 270/2009, whereby the learned Tribunal has allowed the claim filed by the respondent-claimants and the appellant-Insurance Company has been held liable for the same.
2. The civil misc. appeals, S.B. Civil Misc. Appeal No. 1695/2016, S.B. Civil Misc. Appeal No. 1801/2012, S.B. Civil Misc. Appeal No. 1816/2012, S.B. Civil Misc. Appeal No. 1853/2012 and S.B. Civil Misc. Appeal No. 1694/2016 are being decided by this common order, however, facts of S.B. Civil Misc. Appeal No. 1853/2016 are illustratively taken for consideration.
3. Briefly stated, the facts of the case are that the husband of respondent no.1/claimant, Late Chabbilal was going with Late Sanjay Kumar, Jayantilal and Natwarlal from Dungarpur to Kherwara on 12.04.2009 on a motorcycle bearing number RJ-27- (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (5 of 24) [CMA-1695/2016] SD-3463, when a tractor coming from Kherwara, bearing number RJ-12-R-1182 collided with the motorcycle near Vagdari Bus Stand at 9:30 p.m. and subsequently, Sanjay Lal and Chabbilal died and respondent no. 1 along with Natwarlal suffered injuries. Thereafter, a claim was filed by the claimants before the learned Tribunal wherein the respondent driver and owner though remained present but did not file their reply.
4. In its reply to the claim petition filed by the respondent claimants in MAC Case No. 279/2009 and 278/2009 along with 12.04.2016 in MAC Case No. 18/2012 and 19/2012, the appellant- Insurance Company submitted that the driver of the motorcycle, i.e. Late Sanjay Kumar was driving the said vehicle, after consuming liquor and also, at the time of accident there were four people sitting on the said vehicle. It was also submitted in the reply to the claim petition that the driver of the tractor-trolley was not having a valid and effective driving license at the time of the accident and therefore, the appellant-Insurance Company cannot be held liable in the case of clear violations of the conditions of the Insurance Policy. It was further submitted in the reply to the claim petition that the offending vehicle, i.e. the tractor-trolley had been insured with the appellant-Insurance Company under a "Farmers' Package Policy" which strictly limited the use of the insured vehicle to agricultural purposes only, however the offending vehicle at the time of the accident was being used for commercial purposes and therefore, the liability of the appellant-Insurance Company does not arise.
5. In support of the claim petition, the respondent/claimants exhibited 52 documents along with examining 3 witnesses, and (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (6 of 24) [CMA-1695/2016] the appellant-Insurance Company examined the Assistant Manager, United India Insurance Company, Dungarpur, Mr. K.S. Pandya (NAW1).
6. After hearing the parties, the learned Tribunal framed 4 issues including relief in MAC Case No. 18/2012 and 19/2012, wherein the respondent/claimant no. 1 suffered injuries, the issues thereto are as follows:
"1- आया अप्रार्थी संख्या 1 कांतिलाल ट्रेक्टर चालक ने दिनांक 12.04.2009 को समय करीब रात्रि 9.30 पी.एम. पर मौजा वाग्दरी बस स्टेण्ड पर वाहन ट्रेक्टर नं० आर.जे.-12/आर.-1182 मय ट्रोली नं० आर.जे.-12/ई.-0834 जिसकी एक लाईट बंद हालत में तेजगति व उतावलेपन से चलित कर रोड की गलत साईड में आकर मोटर साईकिल नं० आर.जे.-27/ एस.डी.-3463 के टक्कर मार दी जिससे प्र०सं० 18/12 में प्रार्थी जयन्तिलाल व प्र०सं० 19/12 में प्रार्थी नटवरलाल दोनों के शरीर पर गंभीर एवं साधारण प्रकृ ति की उपहतियाँ कारित हुई ?
- प्रार्थीगण-
2- आया अप्रार्थी सं० 8 द्वारा अपने लिखित अभिकथनों की प्रारम्भिक आपत्तियों एवं विशेष कथनों के मध्यनजर एवं अप्रार्थी सं० 1 से 7 तक अपने दायित्व से मुक्त हो सकते है नहीं तो इसका प्रभाव क्या होगा ?
- अप्रार्थी सं० 8- 3- क्या प्रार्थीगण क्षतिपूर्ति राशि प्राप्त करने के अधिकारी है तो किस अप्रार्थी से कितनी-कितनी राशि प्राप्त करने के अधिकारी है ?
- प्रार्थीगण-
4- अनुतोष ।"
7. The learned Tribunal framed 4 issues including relief in MAC Case No. 279/2009 and 278/2009, wherein the husband of respondent/claimant no. 1 died, the issues thereto are as follows:
"1 आया प्रश्नगत वाहन ट्रेक्टर सं० आरजे-12/आर-1182 मय ट्राली नं० आरजे- 12/ई-0834 के चालक विपक्षी सं० 1 द्वारा दिनांक 12.04.2009 को रात्रि 9.30 बजे डूंगरपुर से खेरवाड़ा जाने वाले मुख्य मार्ग पर वागदरी बस स्टैण्ड से थोड़ा आगे उक्त चालक द्वारा उक्त वाहन ट्रेक्टर मय ट्रॉली तेजगति उतावलेपन से चलाकर लाया और मोटरसाईकिल सं० आरजे-27/एसडी-3463 को गलत साईड में आकर टक्कर मारदी, जिससे मोटरसाईकिल पर सवार संजय एवं छबीलाल के शरीर पर गंभीर प्रकृ ति की चोटें आने से उनकी मृत्यु हो गई ? 2 आया विपक्षी सं०-8 बीमा कम्पनी द्वारा अपने जबाव में अंकित तथ्यों एवं विशेष कथन के तथ्यों के अनुसार क्या वह अपने दायित्व से मुक्त हो सकती हैं, यदि नहीं, तो इसका क्या प्रभाव होगा ?(Downloaded on 17/09/2024 at 08:41:05 PM)
[2024:RJ-JD:37048] (7 of 24) [CMA-1695/2016] 3 आया प्रार्थीगण अपने प्रार्थना पत्र में वर्णित प्रतिकर की राशि प्राप्त करने के अधिकारी है? यदि हां तो किस-किस विपक्षी से कितनी-कितनी राशि प्राप्त करने के अधिकारी हैं ?
4 आया दीगर अनुतोष क्या होगी ?"
8. The learned Tribunal framed 4 issues including relief in MAC Case No. 270/2009, wherein the respondent/claimant no. 1 suffered injuries, the issues thereto are as follows:
"1 आया प्रश्नगत वाहन ट्रेक्टर नं० आरजे-12/आर-1182 के चालक विपक्षी सं० 1 द्वारा दिनांक 12.04.2009 को रात्रि करीब 9.30 पीएम पर वागदरी से डूंगरपुर की ओर जाने वाले मुख्य मार्ग पर वागदरी बस स्टैण्ड से आगे उक्त चालक द्वारा उक्त वाहन ट्रेक्टर को तेजगति. गफलत एवं लापरवाही से चलाकर साईड में चल रही मोटरसाईकिल को टक्कर मारदी, जिससे ट्रेक्टर में सवार प्रार्थी के नीचे गिर जाने से उसके शरीर पर गंभीर एवं साधारण चोटें आई ?
2 आया विपक्षी सं० 3 बीमा कम्पनी द्वारा अपने जवाब में अंकित तथ्यों एवं अतिरिक्त उत्तर के तथ्यों के अनुसार वह अपने दायित्व से मुक्त हो सकती है, यदि नहीं तो इसका क्या प्रभाव होगा ?
3 आया प्रार्थी अपने प्रार्थना पत्र में वर्णित प्रतिकर की राशि प्राप्त करने का अधिकारी है ? यदि हां तो किस-किस विपक्षी से एवं कितनी-कितनी राशि प्राप्त करने का अधिकारी है ?
4 आया दीगर दादरसी क्या होगी ?"
9. After hearing the parties, the learned Tribunal in MAC Case No. 18/2012 and 19/2012 came to a conclusion that the claimant, Jayantilal had suffered four simple injuries and the claimant, Natwarlal had suffered one grievous and three simple injuries along with 6% permanent disability and awarded Rs. 19,667/- and Rs. 55,694/- respectively, vide judgment and award dated 12.04.2016. Furthermore, learned Tribunal in MAC Case No. 279/2009 and 278/2009 awarded Rs. 9,89,600/- and Rs. 4,52,400/- respectively, while deciding the claim presented by the claimants for the death of Late Sanjay Kumar and Late Chabbilal respectively, vide judgment and award dated 30.05.2012. Also, in MAC Case No. 270/2009, the learned Tribunal came to the conclusion that the claimant, Laxman suffered one simple and one (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (8 of 24) [CMA-1695/2016] grievous injury along with 10% permanent disability and awarded Rs. 56,500/-, vide the judgment and award dated 27.04.2012.
10. Thus, aggrieved of the judgment and awards dated 12.04.2016, 30.05.2012 and 27.04.2012, the appellant-Insurance Company has preferred the present misc. appeals.
11. Learned counsel for the appellant-Insurance Company submitted that there was a blatant violation of the conditions in the Insurance Policy as well as the law, inasmuch as the husband of the respondent-claimant no. 1 along with Late Sanjay Kumar, Natwarlal and Jayantilal were travelling on the motorcycle which has a seating capacity of two people only. He further submitted that the driver of the motorcycle, Late Sanjay Kumar had consumed liquor and was under the influence of alcohol while driving the said vehicle and therefore, the accident occurred on account of the said negligent act of Late Sanjay Kumar and thus, the learned Tribunal has erred in imposing the liability on the appellant-Insurance Company to grant compensation for the death of husband of respondent/claimant no. 1 and Late Sanjay Kumar along with the injuries suffered by Mr. Natwarlal and Mr. Jayantilal, when the driver of the motorcycle himself was under the influence of alcohol and thus, negligent while driving the said vehicle.
12. Learned counsel for the appellant-Insurance Company further submitted that the learned Tribunal has also erred in awarding compensation to the respondent/claimant no. 1 in the MAC Case No. 270/2009 decided vide judgment dated 27.04.2012, inasmuch as the claimant therein was sitting on the insured vehicle, i.e. the tractor-trolley at the time of the accident and while taking into consideration the Insurance Policy, he (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (9 of 24) [CMA-1695/2016] submitted that the risk of such an occupant was not covered. He thus submitted that in such circumstances and taking into consideration the fact that no premium had been charged towards the said occupant, the appellant-Insurance Company cannot be held liable to compensate for the injuries suffered by an occupant and thus, the learned Tribunal has erred in imposing the liability upon the appellant-Insurance Company.
13. Learned counsel for the appellant-Insurance Company also submitted that upon perusal of the Site-Plan (Ex.24), it is clearly seen that the width of the road was 18 feet and the accident occurred when the offending vehicle was within 9 feet from the other end of the road, and thus, it is a clear case of negligence on part of the driver and in presence of the same, the appellant- Insurance Company cannot be held liable.
14. Learned counsel for the appellant-Insurance Company also relied upon the judgment passed by the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. reported in AIR 2007 SC 1971, wherein it has been observed that the liability cannot fall upon the Insurance Company in case of a passenger travelling in a goods vehicle and that the Hon'ble Apex Court had directed the Insurance Company to satisfy the award, only while exercising the power under Article 142 of the Constitution of India. The relevant paras are reproduced as under:
"10. Furthermore, respondent was not the owner of the tractor. He was also not the driver thereof. He was merely a passenger travelling on the trolley attached to the tractor. His claim petition, therefore, could not have been allowed in view of the decision of this Court in New India Assurance Co. Ltd. v. Asha Rani and Ors. MANU/SC/1105/2002 :(Downloaded on 17/09/2024 at 08:41:05 PM)
[2024:RJ-JD:37048] (10 of 24) [CMA-1695/2016] AIR2003SC607 wherein the earlier decision of this Court in New India Assurance Co. v. Satpal Singh MANU/SC/0751/1999 : AIR2000SC235 was overruled. In Asha Rani (supra) it was, inter alia, held:
"25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle". Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a "goods carriage".
26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof 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 therefore.
27. Furthermore, Sub-clause (i) of Clause (b) of Sub-
section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas Sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place."
xxxx
13. However, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefore it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act.
14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (11 of 24) [CMA-1695/2016] Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties."
15. Learned counsel for the appellant-Insurance Company also placed reliance upon the judgment passed by the Coordinate Bench of this Court in the case of Bagdi Ram v. Indra Bai [S.B.Civil Misc. Appeal No. 613/2020 decided on 04.09.2023] wherein it has been observed that the Insurance Company had been rightly absolved from its liability when the deceased was sitting over the tractor and died by falling from the tractor, while considering the FIR, Chargesheet and the Naksha Mauka and there was no evidence produced by the appellants/claimants therein to deny the said fact.
16. Learned counsel for the appellant-Insurance Company also relied upon the judgment passed by the Coordinate Bench of this Court at Jaipur, in the case of Babu Lal v. Kailash Bai [S.B. Civil Misc. Appeal No. 4547/2019 decided on 03.05.2023] wherein it has been observed that the Tribunal had rightly exonerated the Insurance Company when the deceased was traveling in the offending vehicle as a gratitious passenger and that, the offending vehicle was not being used for agricultural purposes, at the time of the accident, contrary to the purpose for which the offending vehicle had been insured by the Insurance Company and thus, in the present case too, inasmuch as the offending vehicle was not being used for agricultural purposes at the time of accident, learned cousnel for the appellant-Insurance Company submitted that the learned Tribunal erred in imposing the liability upon the appellant-Insurance Company in the present case. The relevant para is reproduced as under:
(Downloaded on 17/09/2024 at 08:41:05 PM)
[2024:RJ-JD:37048] (12 of 24) [CMA-1695/2016] "The Tribunal while deciding the claim petition exonerated the Insurance Company on account of the fact that deceased was traveling in the alleged vehicle as a gratuitous passenger, whereas the alleged tractor was insured for agricultural purposes. The Tribunal in its award also mentioned that son of the deceased Chandra Prakash lodged an FIR (Ex-1) in which he had clearly stated that alleged tractor was attached with trolley, wherein 20-25 persons were sitting. The tractor along with trolley were being used for procession of Barat. The Tribunal while considering these facts clearly mentioned that Insurance Company had not charged any premium for trolley in which persons were traveling. So, in my considered opinion, the Tribunal rightly came to the conclusion that the tractor and trolley were not being used for agricultural purposes. So, Insurance Company is not liable to pay compensation and to recover the same from its owner. So, finding of the Tribunal does not suffer from any illegality and infirmity."
17. Learned counsel for the appellant-Insurance Company also submitted that the learned Tribunal has erred in applying a higher rate of interest in case of default made by the appellant-Insurance Company, thus amounting to a penalty being imposed upon the Insurer, in contrast to the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Limited v. Keshav Bahadur reported in AIR 2004 SC 1581. The relevant paras of the judgment are reproduced as under:
"Though Section 110CC of the Act (corresponding to Section 171 of the New Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (13 of 24) [CMA-1695/2016] there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110CC of the Act or Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal."
18. Per contra, learned counsel for the respondents/owner and driver submitted that the offending vehicle, i.e. the tractor-trolley had been insured under a "Farmer's Package Policy" and therefore, in the light of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Limited v Balakrishnan reported in 2013 (1) SCC 731, even the occupants are insured under a Pacakage/Comprehensive Policy and therefore, the learned Tribunal has rightly imposed the liability upon the appellant-Insurance Company. The relevant paras are reproduced as under:
"21. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy"
would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (14 of 24) [CMA-1695/2016] third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same."
19. Learned counsel for the respondents/claimants submitted that solely because there were four people traveling on a motorcycle, does not prove that the driver of the motorcycle was negligent while driving the said vehicle and therefore, the contention of the learned counsel for the appellant-Insurance Company is baseless. He also placed reliance upon the judgment passed by the Hon'ble Apex Court in the case of Mohammed Siddique & Anr. v. National Insurance Company Ltd. & Ors. [Civil Appeal No. 79 of 2020 decided on 08.01.2020]. The relevant paras of the judgment is reproduced as under:
"13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two-wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (15 of 24) [CMA-1695/2016] by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW-3 to the effect that 2 persons on the pillion added to the imbalance."
20. Learned counsel for the respondents/claimants submitted that the judgment and awards so passed by the learned Tribunal dated 12.04.2016, 30.05.2012 and 27.04.2012 are correct in law and require no further interference by this Court. (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (16 of 24) [CMA-1695/2016]
21. Heard learned counsel for the parties, perused material available on record and judgments cited at the Bar.
22. This Court, upon perusal of the record, finds that the Post- Mortem Report of the deceased driver of the motorcycle, Late Sanjay Kumar was missing and therefore, directed the appellant- Insurance Company to submit a photocopy of the said Post- Mortem Report (Ex.22). The photocopy of the Post-Mortem Report (Ex.22) is thereby added to the Record. This Court now, observes that firstly, Section 185 of the MV Act stipulates the penalty in cases where a vehicle is being driven or an attempt is made to drive the vehicle by a drunken person or a person who is under the influence of drug; however the said provision simultaneously also specifies such person to be having alcohol exceeding 30 mg. Per 100 ml of blood, which is detected by the breath analyzer, which makes him incapable of exercising proper control over the vehicle and only under these circumstances, the penal provision is attracted. The relevant provision is reproduced as under:
"185. Driving by a drunken person or by a person under the influence of drugs.--Whoever, while driving, or attempting to drive, a motor vehicle,--
[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or]
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for term which (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (17 of 24) [CMA-1695/2016] may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation.--For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle."
However, in the present case, upon the perusal of the Post-Mortem Report (Ex.22), it is seen that the concerned Doctor has specifically noted against the heading of Stomach that the stomach was filled with undigested food with poor alcoholic smell and apart from this document, nothing has been placed on record to show that the deceased driver of the motorcycle was under the influence of alcohol at the time of driving the vehicle, which could have undermined his control over the said vehicle.
23. Furthermore, this Court also takes into consideration the judgment passed by the Hon'ble Apex Court in the case of Jiju Kuruvila & Ors. v. Kunjujamma Mohan & Ors. reported in AIR 2013 SC 2293, wherein it was observed by the Hon'ble Apex Court that even when the Post-Mortem Report had specifically mentioned that there was a strong smell of spirit, however, the same cannot lead to the conclusion that the deceased had been negligent while driving the vehicle. The relevant para is reproduced as under:
"25. Post Mortem report, Ext.-A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit.
26. The aforesaid evidence, Ext.-A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (18 of 24) [CMA-1695/2016] was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.- B2, 'Scene Mahazar' and the Ext.-A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eye-witness, Ext.-A1(FIR), Ext.-A4(charge-sheet) and Ext.-B1( F.I. statement) are on record."
Therefore, in the present case too, merely a poor smell of alcohol as determined by the Doctor cannot lead to the conclusion that the deceased, Late Sanjay Kumar had been negligent while driving the motorcycle at the time of the accident as he was under the influence of alcohol.
24. Secondly, while addressing the issue of liability of the Insurance Company in case of an occupant on a vehicle insured under "Farmer's Package Policy", this Court, upon perusal of the Insurance Policy (Ex.DW.A1) produced by the appellant-Insurance Company in S.B. Civil Misc. Appeal No. 1801/2012, finds that the offending vehicle, i.e. tractor-trolley had been insured under 'Farmer's Package Policy' and, upon perusal of the Registration Certificate (Ex.16) of the offending vehicle, i.e. the tractor-trolley, it seen that the offending vehicle has a seating capacity (' बैठने का स्थान') to be one only, which is occupied by the driver of the offending vehicle and thus, occupants, i.e. the respondent/claimant in S.B. Civil Misc. Appeal No. 1801 of 2012, in the present case who was admittedly traveling on the tractor, amounts to violation the policy and in the absence of any premium charged towards him, the liability of such occupant sitting on the tractor, is not covered within the ambit of the Insurance Policy. It is also seen that the Hon'ble Apex Court has clearly observed in the case of Balakrishnan (supra) that the pillion rider on a two- (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (19 of 24) [CMA-1695/2016] wheeler and an occupant in a car are insured under the Package/Comprehensive Policy, however in the present case, it is a "Farmer's Package Policy" before this Court, for consideration which is issued specifically for agricultural and forest purposes and therefore, when the offending vehicle was being plied for purposes other than those specifically mentioned in the Insurance Policy, this Court does not deem it fit to grant indulgence to this extent that the liability of an occupant falls upon the Insurance Company when there was neither any premium charged towards the said Occupant, nor was the offending vehicle plying in accordance with the conditions stipulated in the Insurance Policy.
26. This Court further finds that the learned Tribunal has taken into consideration the fact that at the time of accident, the offending vehicle was being used to carry bricks for the purpose of construction of a farm-wall (मुंडेर) and therefore, it was rightly observed by the learned Tribunal that the offending vehicle was being driven as per the conditions of the Policy while being utilized for agricultural purposes only. Thus, the contention of the appellant-Insurance Company that the offending vehicle was being driven in contravention to the conditions of the Insurance Policy, which specifically provided for Agricultural and Forestry Uses, is devoid of merit inasmuch as the offending vehicle was being driven for agricultural purpose only, i.e. to build a farm-wall ( मुंडेर), as considered by the learned Tribunal.
27. This Court also takes into consideration the judgment passed by the Hon'ble Apex Court in the case of Kamil Khan and Ors. v. Fimidabee and Ors. reported in [Civil Appeal Nos. 8785-8786 of 2015 decided on 03.07.2018] wherein it has been observed that (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (20 of 24) [CMA-1695/2016] the Court has to decide the liability of the Insurance Company after taking into account the policy and the stipulations made therein. The relevant part of the judgment is reproduced as under:
"27. From the factual position as already analysed earlier, it is noticed that the battery of the tractor was used for digging of well in a field used for agricultural purpose. The insured had contended that the work of digging of well in a field used for agricultural purpose would embrace an activity associated with agriculture for irrigating the field and we have answered the same in the affirmative. We may immediately state that our answer does not help in fastening the liability because there has been no analysis as regards the terms and conditions of the policy and its fundamental character. The High Court, as we notice, has not dealt with any of these matters, the adjudication whereof has now become inevitable to answer the issue about the liability to be borne by the insurer, the owner of the vehicle (insured) or otherwise. This adjudication requires analysis of relevant material including the insurance policy and evidence of concerned witnesses, for understanding the terms and conditions of the policy regard being had to nature of policy and the extent of the liability of the insurer, if any. As the High Court has not considered this aspect at all, we deem it appropriate to relegate the parties to the High Court for determining the singular issue about fastening of the liability on the insurer or the owner of the vehicle. Under these circumstances, we are of the considered opinion that until that issue is finally decided, the insurance company must pay the compensation amount payable to the claimants as determined by the tribunal in terms of the award dated 5th January, 2008, which payment will be subject to the outcome of the remanded appeals to be decided by the High Court. Needless to state that the claimants need not contest the remanded proceedings before the High Court as it is remitted only for limited purpose to determine the (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (21 of 24) [CMA-1695/2016] liability amongst the insurer (United India Assurance Co. Ltd.) and owner of the vehicle, Kanhaiyalal."
Thus, this Court after taking into consideration the fundamental nature of the Insurance Policy, by virtue of which the offending vehicle had been insured for agricultural and forestry purposes only and also the fact that the premium has been charged for Agriculture Tractor, own damage and third party only, finds that the occupant is not covered under the said Policy.
28. This Court also finds, upon perusal of the Site-Plan (Ex.24) that it has been specifically observed in the Site-Plan that the accident took place on an 18 feet wide road, and while the motorcycle was traveling within the width of 9 feet of the said road from its left, from Dungarpur to Kherwara, it was the offending vehicle, i.e. the tractor-trolley which collided with the said motorcycle, whilst going to its further right. The relevant part of the Site-Plan (Ex.24) is reproduced as under:
"A LFkku ?kVukLFky fLFkr gS tgka A eks- lkbZ- ua- RJ27 SD 3463 dks VªSDVj A2 No. RJ12 R-1182 }kjk VDdj ekj ,DlhMs.V djuk fLFkr gSA ?kVukLFky jksM ds 9 QhV ds vanj VªSDVj pkyd }kjk M/C dks VDdj ekj ,DlhMs.V djuk ik;k tkrk gSA"
29. Thus, taking into consideration the nature of the Insurance Policy as well as the terms and conditions stipulated therein, this Court is of the view that the respondent/claimant no. 1, Laxman suffered injuries on account of the said accident, however, he was not covered by the terms of the said Policy inasmuch as firstly, the Insurance Policy is a "Farmer's Package Policy" insuring a vehicle only for Agriculture and Forestry Purposes and secondly, the judgment of Hon'ble Apex Court in the case of Balakrishnan (Downloaded on 17/09/2024 at 08:41:05 PM) [2024:RJ-JD:37048] (22 of 24) [CMA-1695/2016] (supra) takes into consideration the risk of pillion rider on a two- wheeler and an occupant in a car for imposing liability upon the Insurance Company under a Package/Comprehensive Policy, however, presently, the offending vehicle is a tractor-trolley and therefore, while taking into account the Insurance Policy which has not charged any premium towards the occupant, and also, the Registration Certificate (Ex.16), which clearly mentions the seating capacity ('बैठने का स्थान') of the offending vehicle, i.e. the tractor to be one only, and despite this, the respondent/claimant no. 1 in S.B. Civil Misc. Appeal No. 1801 of 2012, was admittedly sitting on the tractor apart from the driver, thus, under the given circumstances, the risk of the occupant was not covered under the Insurance Policy. Moreover, with regards to the contention of the counsel for the appellant in MAC Case No. 279/2009 and 278/2009 along with 12.04.2016 in MAC Case No. 18/2012 and 19/2012, that the deceased Sanjay Kumar, had consumed liquor and account of said influence of alcohol, drove the other vehicle, i.e. the motorcycle, negligently, cannot be taken into account inasmuch as, it is only the Post-Mortem Report (Ex.26) which mentions about a poor smell of alcohol, which is not sufficient to prove that the deceased Sanjay Kumar was under the influence of alcohol and consequently, drove negligently at the time of accident. It is also seen that merely because there were 4 persons traveling on the motorcycle, at the time of accident, it cannot be said that the driver of the motorcycle had been negligent, as it is seen from the Site-Plan (Ex.24) that it was the offending vehicle, i.e. the tractor-trolley who drove negligently and collided with the (Downloaded on 17/09/2024 at 08:41:06 PM) [2024:RJ-JD:37048] (23 of 24) [CMA-1695/2016] motorcycle while going to its right on an 18 feet road, when the motorcycle itself was found to be within 9 feet from its left.
30. Therefore, in the light of aforesaid discussion, the appeals, S.B. Civil Misc. Appeal No. 1695/2016, S.B. Civil Misc. Appeal No. 1816/2012, S.B. Civil Misc. Appeal No. 1853/2012 and S.B. Civil Misc. Appeal No. 1694/2016, whereby the learned Tribunal had awarded compensation to the respondent/claimants who were traveling on the motorcycle from Dungarpur to Kherwara are dismissed inasmuch as merely because the driver of the motorcycle had consumed alchohol is not sufficient to prove that he was indeed under the influence of alcohol while driving the motorcycle and that, even the Post-Mortem Report (Ex.22) mentions only a poor smell of alcohol.
31. Further, the S.B. Civil Misc. Appeal No. 1801/2012, wherein the learned Tribunal has awarded a compensation to the respondent-claimant who was sitting on the tractor, at the time of the accident, is partly-allowed inasmuch as the respondent- claimant in the said appeal was traveling as an occupant in the tractor-trolley, the seating capacity of which tractor was only one and also, the respondent-claimant was not insured. The appellant- insurance company is exonerated from its liability to pay the compensation as determined by the learned Tribunal in S.B. Civil Misc. Appeal No. 1801/2012.
32. If any amount has been disbursed to the respondent/claimant in S.B. Civil Misc. Appeal No. 1801/2012, the claimant shall refund back the said amount along with interest @ 6% p.a. to the appellant-Insurance Company, however, the (Downloaded on 17/09/2024 at 08:41:06 PM) [2024:RJ-JD:37048] (24 of 24) [CMA-1695/2016] respondents/claimants shall be entitled to get compensation from respondents/owner and driver of the offending vehicle.
32. Record be sent back forthwith. No costs.
(DR. NUPUR BHATI),J 51-/devesh/-
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