Madhya Pradesh High Court
Mahila Rani Bai vs Kaptan Singh Kansana on 21 October, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 21st OF OCTOBER, 2024
MISC. APPEAL No. 139 OF 2008
UNITED INDIA INSURANCE COMPANY LIMITED
VS.
MAHILA RANIBAI AND ORS.
AND
MISC. APPEAL No. 350 OF 2008
MAHILA RANIBAI AND ORS.
VS.
KAPTAN SINGH KANSANA AND ORS.
APPEARANCE
Shri B.K.Agrawal, learned counsel for the Insurance Company.
Ms. Kritika Mohata, learned counsel on behalf of Shri Ankur Maheshwari, learned
counsel for the claimants.
Shri Yogesh Singhal, learned counsel for the owner of the offending tractor.
ORDER
This order shall govern disposal of M.A.Nos. 139/2008 and M.A.No. 350/2008 as both these appeals arise out of common award 2 dated 13/12/2007 passed by Fourth Additional Motor Accident Claims Tribunal, Morena in Claim Case No. 238/2006.
2. By the impugned award, claimants were awarded a total compensation of Rs. 2,41,400/- for the death of deceased Gorelal in road accident dated 2/5/2006 and since Claims Tribunal found that tractor was being driven in breach of insurance policy, Insurance Company was exonerated from its liability; however, it was directed to Insurance Company to make the payment of compensation amount first to the claimants and thereafter recover the same from owner of the offending tractor.
3.Briefly stated facts of the case are that claimants/wife, children and parents have filed a claim case claiming total compensation of Rs. 33,47,000/- for the death of Gorelal. According to them on 2/5/2006 at about 1.00 pm when deceased Gorelal was going to mine from Sabalgarh, due to rash and negligent driving of tractor driver of tractor No. MP06JA5934, it dashed the deceased due to which he sustained grievous injuries and succumbed to the same.
4. M.A.No. 139/2008 has been filed by Insurance Company challenging the liability part of the impugned award whereby though Insurance Company was exonerated from its liability; however, still it was directed to make the payment of compensation amount to claimants and thereafter recover it from the owner of the offending tractor. According to learned counsel tractor was insured for agricultural purposes and was being used other than the purpose for which it was insured in violation of the policy conditions and in spite of proving the same by adducing evidence, learned Claims Tribunal though exonerated the Insurance Company from its liability but directed to make the 3 payment of compensation amount to claimants first and thereafter recover it from the owner of the offending tractor; whereas, in such matters where it is found that deceased was travelling in the tractor trolley as passenger, even the order of pay and recover cannot be passed. In support of his contentions he relied upon the decisions of this Court in the matter of Shriram General Insurance Company Limited Vs. Shanti w/o late Santosh Singh and Ors., 2022(4)MPLJ74, United India Insurance Co. Ltd. Vs. Nattha Ram and Ors., (M.A.No. 104/2004 decided on 20/7/17), The National Insurance Company Ltd. Vs. Ajudhya Bai & Ors., (M.A.No. 429/2003 decided on 22/6/17) and United India Insurance Co. Ltd. Vs. Poonamchand & Ors. (M.A.No. 2762/2007 decided on 22/12/2023).
5.Learned counsel for the claimants opposed the prayer and by filing cross-objections as well as separate miscellaneous appeal vide M.A.No. 350/2008 sought enhancement of the compensation amount.
6.Heard learned counsel for the parties at length and perused the record as well as impugned award.
7.Appellant/Insurance Company has filed appeal against the liability part of the impugned award whereas, claimants have filed cross- objections as well as separate appeal seeking enhancement of the compensation amount.
8.From perusal of the impugned award and record, it is clear that author of FIR (Ex. P/2) clearly stated that at the time of accident they were travelling in the tractor trolley attached with the tractor. As such, it is an afterthought that eye-witness/copassenger Virendra PW/2 gave statement in the court that at the time of accident he and deceased were walking on the road, as such same is unbelievable. As such, in para 13 4 of the impugned award, learned Claims Tribunal erred in holding that Rs. 810/- third party premium has been taken and therefore, Insurance Company is liabile to satisfy the claim first in favour of claimants and thereafter recovery the amount from owner of the offending vehicle; whereas, in such cases person travelling over the trolley cannot be considered a third party to the tractor.
9.In view of aforesaid discussion, it is clear that at the time of accident, deceased was travelling in the tractor-trolley. As such it is evident that the deceased was travelling on the Tractor and was not walking on the road. A person other than the driver is not entitled to travel on the Tractor. As the Tractor is not meant for sitting of any passenger. This aspect has been decided by this Court in National Insurance Company Limited versus Bakaridan & Others 2017 ACJ 2524 wherein it is held that if death of a passenger travelling on the mudguard of Tractor when Tractor met with accident due to its rash and negligent driving then Insurance Company cannot be fastened with liability as seating capacity of Tractor is only one person i.e.driver and no premium is paid for carrying passengers by the side of driver or in trolley and thus only the owner will be responsible for the payment of compensation. This aspect has also been discussed by a coordinate Bench of this Court at Indore in Ramakant Mishra versus Pramod Kumar & Others (Miscellenous Appeal No.733 of 2000 decided on 23.6.2022.
10.As there is violation of the terms and conditions of the Insurance Policy inasmuch as the sitting capacity of the Tractor is only One and no passenger is allowed so also no premium for passenger is charged, therefore, the impugned award is modified to the extent that the 5 amount of compensation will be payable by the Owner of the Tractor only and even the direction of Pay and Recover cannot be issued to the Insurance Company.
11.As regards, cross-objections as well as separate appeal filed on behalf of claimants seeking enhancement in the compensation amount, after going through the evidence and pleadings came on record, in the opinion of this Court no ground for enhancement of the compensation amount is made out and the award amount as awarded by the Claims Tribunal is just and proper and accordingly cross-objections as well as appeal filed by claimants are hereby dismissed.
12.Accordingly, the appeal filed by Insurance Company vide M.A.No. 139/2008 is allowed and Insurance Company is exonerating from its liability completely and instead owner of the offending vehicle is directed to make the payment of the compensation amount within two month from today to the claimants and M.A.No. 350/2008 is hereby dismissed in view of aforesaid discussion.
(ROOPESH CHANDRA VARSHNEY) JUDGE jps/-
JAI PRAKASH SOLANKI 2024.10.24 13:33:25 +05'30'