Madras High Court
The Oriental Insurance Company Limited vs Meenakshi ... 1St on 15 April, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 15/04/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.1243 of 2009 and M.P.(MD)No.1 of 2010 and M.P.(MD)No.4 of 2009 The Oriental Insurance Company Limited, through its Branch Manager, Office at Door No.555/1, G.H.Road, Theni Town. ... Appellant / 2nd Respondent Vs 1. Meenakshi ... 1st Respondent /Petitioner 2. M.Murugesan ... 2nd Respondent/1st Respondent Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the award made in M.C.O.P.No.82 of 2004 dated 31.10.2007, on the file of the Motor Accident Claims Tribunal, District Judge, Sivagangai. !For Appellant ... Mr.K.Baskaran ^For Respondents ... Mr.J.karthik for Mr.R.Subramanian for R.1 * * * * * :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against the award made in M.C.O.P.No.82 of 2004 dated 31.10.2007, on the file of the Motor Accident Claims Tribunal, District Judge, Sivagangai.
2. The tractor with a trailer of the second respondent was insured with the appellant Insurance Company. The first respondent travelled on the mudguard of the tractor on 24.11.2002. According to the first respondent, the driver of the tractor drove the tractor rashly and negligently and she fell down due to the same and the left front wheel of the trailer ran over the hip of the first respondent. She received grievous injuries and suffered 48% permanent partial disability. She was a coolie employed to load and unload the waste that was carried in the trailer. She filed M.C.O.P.No.82 of 2004 claiming Rs.2,00,000/- as compensation. The Tribunal passed an award dated 31.10.2007 granting Rs.60,000/- with 7.5% interest and costs.
3. Heard Mr.K.Bhaskaran, learned Counsel for the appellant and Mr.J.Karthik for Mr.R.Subramanian, learned Counsel for the first respondent.
4. The learned Counsel for the appellant is not questioning the quantum. The learned Counsel questions the liability. The learned Counsel submits that since the first respondent sat on the mudguard of the tractor, the appellant is not liable to pay any compensation. The learned Counsel for the appellant relies on a number of judgments of this Court and the Honourable Apex Court.
5. On the other hand, the learned Counsel for the first respondent submits that since she was a coolie/load woman, she is entitled to compensation as per the conditions of the policy itself. Secondly, it is submitted that as far as the trailer is concerned she was a third party and therefore she is entitled to compensation. The learned Counsel relies on the same judgments that were relied on by the Tribunal for awarding compensation.
6. I have considered the submissions made on either side and perused the records.
7. It is not in dispute that the first respondent travelled on the mudguard of the tractor. It is also not in dispute that she was a coolie and that the tractor took waste for the purpose of agriculture. In these circumstances, whether the first respondent is entitled to compensation is the sole question.
8. The learned Counsel for the appellant relies on the following judgments in support of his submissions.
(i) Sita Devi Vs. Dharambir and Others reported in III (2007) ACC 692
(ii) Branch Manager, National Insurance Company Limited Vs. Ganapathi & Others reported in AIR 2007(NOC)246(MAD)
(iii) Oriental Insurance Company Limited Vs. D. Laxmanan and Others reported in 2007(1) AIR Kar R 159
(iv) Oriental Insurance Company Limited Vs. Brij Mohan and Others reported in IV(2007) ACC 254 (SC)
(v) Bhav Singh Vs. Savirani & Others reported in AIR 2008 Madhya Pradesh Full Bench
(vi) National Insurance Company Limited Vs. Durga Prasad & Others reported in AIR 2008(NOC)1437 (MP)
(vii) National Insurance Company Limited Vs. Durga Prasad & Others reported in AIR 2009 (NOC) 1437
(viii) IFFCO-TOKIO General Insurance Company Limited Vs. Sulochana & Others reported in IV 2009 ACC 200
(ix) United India Insurance Company Limited Vs. Smt.Anguri devi and Others reported in 2010(1) T.A.C. 136(MP)
(x) Ramashiray Singh Vs. New India Assurance Company Limited and Others reported in 2003(3) T.A.C.3(S.C.)
(xi) National Insurance Company Limited Vs. V.Chinnamma & Others and
(xii) National Insurance Company Vs. Parvathneni and another.
The learned Counsel strenuously contends that if the injured travelled on the mudguard of the tractor, the Insurance Company is not liable to pay compensation.
9. Before the Tribunal, four witnesses were examined on the side of the first respondent injured and the documents Ex.P.1 to P.8 were marked. On the side of the appellant, one witness was examined and the Insurance policy was marked as Ex.R.1. Ex.R.1 contains two policies, one for the tractor and the other for the trailer. The policy relating to the tractor contains the following relating to the payment of premium.
"SCHEDULE OF PREMIUM B) LIABILITY TO PUBLIC-BASIC Rs.507.00 ADD:LEGAL LIABILITY TO PASSENGERS Rs. 0.00 ADD:Liability for Paid Drivers/Workmen No1 Rs. 15.00 ADD:TPPD Cover for Unlimited Amount Rs. 75.00 ADD:
Loading Act Premium Rs. 0.00
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Total of (B) Rs.597.00 Total Premium(A+B) Rs.597.00
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R.W.1 also admits that the policy covers work man, apart from a driver. The cross of examination of R.W.1 is extracted herein: "v.k.rh.M.1 ghyprpapy; ouhf;lUf;F xU oiuth; kw;Wk; BtiyahSf;F fhg;gPL bra;ag;gl;Ls;sJ."
10. As per the policy conditions, the Insurance Company collected the premium for driver as well as for workman. Here, admittedly the first respondent was a coolie and she was a work woman. The policy relating to tractor covers a coolie, who is supposed to travel in the tractor. The Tribunal also had taken note of this fact and awarded compensation. The Tribunal has considered the judgment of this Court in The Oriental Insurance Company Limited Vs. Mottaiammal and Others reported in 2007(1) CTC 234, wherein this Court has upheld the award of the Tribunal in identical circumstances. Paragraph 10 of the said judgment of this Court is relevant and the same is extracted herein:
"10. I have perused the insurance policy of the vehicle in question which is marked as Ex.R.1 where from it can be found that coolies/driver/cleaner are also covered under the policy of insurance for which a sum of Rs.16/- has been paid as premium. In that view of the matter, the contention of the counsel for the appellant-Insurance Company that the first respondent/claimant is not covered under the policy of insurance, does not have legs to stand and as such, his reliance on the decision of the Supreme Court does not have any relevance on the case on hand. In view of these findings, I hold that the judgment of the Tribunal is not infirmed and I have no hesitation in confirming the same."
11. The following passage in paragraph 13 of the award of the Tribunal based on the judgment of this Court in THE NEW INDIA ASSURANCE COMPANY LIMITED VS ANSUYA AND OTHERS reported in 1990(1) TAC 79 is extracted herein:
"It has been held in 1990(1) TAC Page 79 The New India Assurance Company Limited Vs. Ansuya and Others, tractor towed with trailer would mean a motor vehicle constructed or adapted for the purpose of carriage of goods and therefore it is a goods vehicle and it is further held that the tractor and trailer is insured for the purpose of agricultural operation. Carrying the coolies for loading or unloading is incidental to the purpose of agricultural operation. They are not being carried for hire or reward as a stage carriage but as an incident to their carrying on agricultural operations by the user of the goods vehicle, namely, tractor-cum-trailer. Thereby, there is an implied authorisation for permitting to carry the coolies in the tractor-cum-trailer when the vehicle is used for agricultural operations. In that circumstance, the insurance company is liable to pay compensation for the injured or death of labourer is working in that tractor-cum-trailer."
12. However, the learned Counsel for the appellant submits that though the first respondent was a coolie, the appellant is not liable to pay the compensation if the coolie travelled on the mudguard of the tractor. He relies on the aforesaid judgments, referred to in paragraph 8 of this judgment. These judgments are considered hereinafter.
13. This Court in Branch Manager, National Insurance Company Limited Vs. Ganapathi and Others reported in AIR 2007(NOC)246 (MAD) held that the injured travelled in the tractor was a gratuitous passenger and therefore not entitled to compensation. The following passage in paragraph 9 is extracted herein:
"9....On the other hand, it is the case of the claimants that on the date of the accident, the deceased Arivazhagan had travelled in the tractor and fell down from the tractor and sustained grievous injuries. The learned Counsel for the appellant would contend that the fact that the deceased Arivazhagan had travelled in the said tractor on the fateful day, was admitted by the claimants and he had sustained grievous injuries due to the accident, resulting his death and that the position of the injured was that of a gratuitous passenger, travelling in a goods vehicle and for the injury sustained by the said gratuitous passenger, the insurance company is not liable to pay any compensation as per the dictum in New India Assurance company Limited V. Asha Rani and Others reported in 2003(ACJ I: (AIR 2003 SC 607).
14. The next judgment of this Court is reported in Natonal Insurance Company Limited, Thanjavur Vs. Pavunammal reported in AIR 2009(NOC) 616 (MAD). In that judgment, also the plea of the claimants that they were load men was rejected and this Court came to the conclusion that the claimants were students travelled in Bajaj Tempo Van. Paragraph 3 and a passage in paragraph 26 of the said judgment are extracted herein:
"3. Inviting the attention of this Court to the averments made in each of the claim petitions, learned Counsel for the appellant submitted that when the respondents/claimants have themselves admitted in their claim petitions that they did not travel either as load men or as owner of the goods, the Tribunal has grossly erred in fastening the liability on the Insurance Company. The second respondent/owner of the vehicle has contested the claim petitions before the Tribunal and he is also on record in the present appeals.
26... Admittedly, it is not the case of the respondents/claimants in their petitions that they travelled in the tempo van as owners of any goods or as load men /load women or employed during the course of a contract of employment under the owner of Bajaj Tempo Van, the second respondent in these appeals. .. Admittedly, the respondents/claimants in Civil Miscellaneous Appeal Nos.52 and 53 of 2007 were students at the time of the accident and therefore, their contention that they were loadmen or owners of the goods is liable to be rejected."
15. The other judgment of this Court is in IFFCO-TOKIO General Insurance Company Vs. Sulochana and Others reported in IV 2009 ACC 200. In that case, the policy does not cover the workman and in that context, this Court held that the coolie employed in the tractor was not entitled to compensation. The following passage in paragraph 6 relevant for the purpose of the case is extracted herein:
"6....A careful reading of the Insurance Policy would show that for legal liability to driver a premium of Rs.25 has been paid and next to it, a column available as "number of passengers" against which nothing is there. Hence, even if the vehicle is under insurance, the Insurer shall indemnify the vehicle owner as regards the liability to driver alone and no body else."
In this case, the policy covers also one workman.
16. The learned counsel for the appellant relies on the judgment of the Honourable Apex Court in Oriental Insurance Company Limited Vs. Brij Mohan and Others reported in IV (2007) ACC 254 (SC). In that case also, the claimant travelled as a passenger. Therefore, the Honourable Apex Court held that he is not entitled to compensation. It is also held that the policy was for using the tractor cum trailer for the purpose of agriculture, while the same was used for business purpose. In that context, it is held that the Insurance Company was not liable. However, the Honourable Apex Court directed the Insurance Company to pay the amount and thereafter to recover the same from the owner of the tractor. The following passage from paragraph 10 of the judgment is extracted in this regard:
"10...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 & Others, III(2002) ACC 753 (SC)=VII(2002)SLT91=2003(2)SCC 223."
17. The other judgment of the Honourable Apex Court relied on by the learned Counsel for the appellant is National Insurance Company Limited Vs. V. Chinnamma and Others reported in III(2004)ACC 1(SC). In that case, the tractor and the trailer was not used for agricultural purpose. The deceased who travelled in the tractor cum trailer was a businessman dealing in vegetables. Further, the accident took place before 1994. Hence, the contentions of the deceased that he was the owner of the goods (vegetables) and therefore, he was entitled to compensation was rejected by the Honorable Apex Court holding that only after 1994, the owners of the goods travelled in the goods vehicle accompanying goods are entitled to compensation payable by the Insurance Company. The following passage from paragraph 16 of the said judgment is extracted herein:
"16...The deceased was a businessman. He used to deal in vegetables. After he purchased the vegetables, he was to transport the same to market for the purpose of sale thereof and not for any agricultural purpose. The tractor and trailer, therefore, were not being used for agricultural purposes. However, even if it be assumed that the trailer would answer the description of the "goods carriage"
as contained in Section 2(14) of the Motor Vehicles Act, the case would be covered by the decisions of this Court in Asha Rani(supra) and other decisions following the same, as the accident had taken place on 24.11.1991 i.e. much prior to coming into force of 1994 amendment."
18. Another judgment relied on by the learned Counsel for the appellant is the decision of a Division Bench of Karnataka High Court in Oriental Insurance Company Limited Vs. D.Laxman and Others reported in 2007(1) AIR Kar R 159. In that case, the persons travelled in a trailer and some of them died and some of them were injured. The trailer was admittedly not insured, while in this case under appeal, the trailer was insured. Since, the trailer was not insured, the claim was rejected, though the persons travelled were coolies taken in the trailer. Hence, it is of no use for the appellant.
19. The last judgment relied on by the learned Counsel for the appellant is the unreported decision of the Honourable Apex Court in Oriental Insurance Company Vs. Nattbi Bai and Others. He relied on the following passage of the judgment.
"The deceased was travelling on a tractor. He was sitting on one of its mudguards. It overturned resulting in the accident. Indisputably, the tractor was to be used only for agriculture purposes and not for carrying any passenger.
Question in regard to liability of the Insurance Company, vis-a-vis, the passenger travelling in a tractor which is not used for agriculture purpose came up for consideration before this Court in National Insurance Co.Ltd. Vs. Chinnamma & Ors. 2004(8) SCC 697, wherein it was categorically held as under:
"14. An insurance for an owner of the goods or his authorised representative travelling in a vehicle became compulsory only with effect from 14.11.1994 i.e. from the date of coming into force of amending Act 54 of 1994: The said legal principle is reiterated in relation to gratuitous passenger in National Insurance Co.Ltd. Vs. Boomithi Subbhayamma & Ors-2005(12) SCC 243. Yet again in New India Assurance Co. Ltd. Vs.Vedwati & ors. 2007(3) SCALE 397, a Division Bench of this Court has clearly held that the liability of the insurer would be limited to a third party and not to a gratuitous passenger."
This passage is also against the appellant. It is stated that indisputably the tractor carried passengers while the tractor was supposed not to carry the passengers. In that case, the person who travelled in mudguard was not a coolie but was a passenger. In that context, the Honourable Supreme Court has held that the person is not entitled to compensation from the Insurance Company.
20. The other judgments relied on by the appellant are also of no use, as those cases, injured/deceased travelled as passengers in goods carriage.
21. As already stated, it is not in dispute that the first respondent was a coolie and that she was taken in the tractor for the purpose of doing agricultural work. The following passage in the F.I.R. is extracted herein:
"vd; mz;zp kPdhl;rp bfhl;lhk;gl;o Kf;ifah kfd; KUBfrd; vd;gtuJ ouhf;lhpy; Btiy ghh;j;J tUfpwJ. 24.11.02-k; Bjjp mjpfhiy vd; mz;zpa[ld; ehDk; Bkw;go ouhf;lh; TN-59-D-2337 mjd; bla;yh; TN-59-D-2338 tz;oapy; Fg;ig ms;Sk; Btiyf;F BghapUe;Bjd;. Bkw;go ouhf;liu kyk;gl;o nsA;F kfd; Kj;Jf;fhis Xl;o te;jhh;. mjpfhiy 02.00 kzpf;F Btl;ilad;gl;o fz;khapy; Fg;ig ms;sp, rutzd; Bjhg;gpy; nwf;fp tpl;L Btl;ilad;gl;o gs;sp mUBf tistpy; tUk;BghJ vd; mz;zp oiuth; rPl;Lf;Fg; gf;fj;jpy; nUe;jJ. oiuth; tistpy; mjpBtfkhft[k;, ftdf;Fiwthft[k; xl;o te;jjhy; mz;zp fPBH tpGe;J tpl;lJ. mg;gt[k; Xl;Leh; ftdpf;fhky; Xl;oajhy; Bkw;go ouhf;lhpd; nlJ Kd; rf;fuk; vd; mz;zpapd; nLg;gpy; Vwp nwA;fpajhy; tz;oia epWj;jpg; ghh;j;jBghJ vd; mz;zpf;F nLg;gpYk;, tyJ fhy; bjhil, jiyapd; gpd;g[wKk; uj;jf; fhaA;fs; Mfp nUe;jJ."
22. The first respondent and P.W.4 categorically stated before the Tribunal that the first respondent was employed as a coolie in the tractor. Even assuming that the accident is caused by the trailer, it could be either taken that the injured was a third party to the trailer or the injured being a coolie is entitled to compensation as the tractor with trailer fits in the definition of goods carriage.
23. In these circumstances, I do not find any infirmity in the award. Hence the appeal fails and the same is dismissed. Consequently, the connected Miscellaneous Petitions are dismissed. No costs.
ssl To The Motor Accident Claims Tribunal, District Court, Sivagangai.