Punjab-Haryana High Court
Jai Bhagwan And Another vs Koshalya And Others on 29 April, 2014
Author: K. Kannan
Bench: K. Kannan
FAO No.660 of 2010 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.660 of 2010 (O&M)
Date of Decision.29.04.2014
Jai Bhagwan and another ......Appellants
Versus
Koshalya and others ......Respondents
Present: Mr. Aman Pal, Advocate and
Mr. MPS Chandel, Advocate
for the appellants.
Mr. Chander Shekhar Singhal, Advocate for
Mr. S.P. Chahar, Advocate
for respondent Nos.1 to 3.
Mr. Vishal Aggarwal, Advocate
for respondent No.4.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
1. The appeal is by the owner and driver of a tractor aggrieved against the fact that the insurance company has been relieved of its duty to pay the amount which was determined as compensation payable to the claimants.
2. The accident had taken place on 04.01.2009 when the tractor laden with sugarcane in the trolley attached to the tractor struck against the deceased who was a pedestrian. Respondent respondent Nos.1 and 2 took a defence denying the accident and contending that the tractor was actually standing on the sugar mill at the relevant time and false complaint had been registered against them. The Tribunal on Kamboj Pankaj Kumar 2014.05.01 13:57 I attest to the accuracy and integrity of this document Chandigarh FAO No.660 of 2010 (O&M) -2- recording the evidence of witnesses held that the tractor loaded with sugarcane in its trolley came inside the gate of the sugar factory at a very high speed and dashed against the deceased. Admittedly, a criminal case had been filed against the driver and the Tribunal held that the fact that there was a FIR lodged immediately after the accident setting out the details and the further fact that the driver was facing a criminal prosecution was sufficient to hold the respondent Nos.1 and 2 liable. However, while considering the issue of liability of the insurance company it upheld the defence of the insurer that the policy which was exhibited as Ex.R3 bore out the fact that only the tractor had been insured and the trailor had not been insured. The Tribunal referring to the decision of the Supreme Court in M/s Natwar Parikh and Company Limited vs. State of Karnataka and others 2006(1) ACJR 281, observed that a tractor trolley would constitute a goods carriage under Section 2(14) of the Motor Vehicles Act and consequently, a transport vehicle. Under Section 2(47) of the Act, the trailer was a separate accessorial entity. The judgment, however, did not take any relevance to determination of insurer's liability and therefore, no help could be drawn from this authority. The Tribunal actually found that the insurance company had not proved that the driver had not a valid driving licence. There is no cogent or clear reason available from the decision as to why the case against the insurance company was dismissed. I believe that it was essentially on account of the fact that the trailer had not been insured.
3. I have seen through the copy of the FIR. It states that a tractor connected to three trailers was proceeding near gate No.4 when Kamboj Pankaj Kumar 2014.05.01 13:57 I attest to the accuracy and integrity of this document Chandigarh FAO No.660 of 2010 (O&M) -3- the deceased who was standing in the vicinity came in contact by the side portion of the trolley by the rash and negligent driving of the driver of the tractor. It is not stated anywhere that the deceased was run over by the tractor. On the other hand, the deceased was hit by the trailer. He fell down and sustained fatal injuries.
4. The issue of whether the tractor attached to a trailer should have insurance both for the tractor and trailer have been considered in different situations. Just the same way as tractor would require to bear registration number even a trailer is required to have a registration under the Motor Vehicles Act. Section 41 of the Motor Vehicles Act contains provisions for registration of vehicles. Section 61 states that the provisions of the chapter relating to registration of the motor vehicles will apply to the registration of trailers and also mandates the registration mark to be displayed in such a manner on the side of the driving vehicle as may be prescribed. The trailer which is attached to a tractor can result in the vehicle being a goods carriage and the liability as regards an accident involving a tractor attached to a trailer has been considered in two different situations. One, as regards the nature of licence which is necessary for the driver to be said to have an effective driving licence and two, whether a separate insurance policy is necessary for the trailer. A three member bench of the Supreme Court in recent judgment in Fahim Ahmad and others Vs. United India Insurance Co. Limited decided on 25.03.2014 was dealing with a case of a tractor used for agricultural purpose by its owner for transporting his own goods. It was stated to be different from a transport vehicle which is used for a commercial purpose and held that LMV licence of the driver Kamboj Pankaj Kumar 2014.05.01 13:57 I attest to the accuracy and integrity of this document Chandigarh FAO No.660 of 2010 (O&M) -4- was sufficient to make the insurer liable. We are not concerned about such a situation, for the Tribunal in this case has specifically held that the driving licence which was held by the driver to be adequate to drive the particular category of vehicle. The point involved, however, is whether the trailer was required to be covered by separate policy cover. That is the second situation.
5. Learned counsel appearing on behalf of the appellant would contend that Indian Motor Tariff which sets out under Section 4 tariff for commercial vehicles brings categories A to G. Tariff for trailer for category B is applicable under the following circumstances:-
"Any truck, cart, carriage or other vehicle, including agricultural implements, without means of self-propulsion, drawn or hauled by any self-propelled vehicle is referred to as trailer for the purpose of this tariff."
It sets out the tariffs for liability for agricultural/forestry vehicle. This provision cannot be stated, therefore, that a trailer which is used for agricultural purpose does not require any premium to be paid for insurance. The counsel would make reference to a list of miscellaneous and such type of vehicles. It is attached to tariff or miscellaneous special type of tariffs under clause D. In the annexure mentioned in Clause D agricultural tractor is set out in list I and entry 58 "trolleys and goods carrying tractors.". Rule 2(b) defines an agricultural tractor to mean a mechanically propelled four wheel vehicle. A tractor by itself is a non-transport vehicle. Category 'D' spells out in clause 4 as follows:-
"Trailers of special type of vehicles included under this Section are not to be insured separately. The cover for the vehicle and trailer must be identical."
The counsel seeks to contend that if there is a trailer attached for a Kamboj Pankaj Kumar 2014.05.01 13:57 I attest to the accuracy and integrity of this document Chandigarh FAO No.660 of 2010 (O&M) -5- special category of vehicle it does not require to be insured. In my view, the argument is fallacious. We have already seen the tariff under category B which sets out the premium payable for a trailer. We have examined that a tractor by itself is not a transport vehicle. It becomes a goods carriage if only it is attached to a trailer which is intended to carry goods. The provision for tariff for miscellaneous types of vehicle in the schedule contains reference to both tractor and trailer. If Clause 4 states that the trailer is not be insured separately, it does not mean that insurance is not necessary for trailers attached to tractors used for agricultural purposes. It only means that an insurer shall not undertake a risk for a trailer separately without reference to a tractor. A tractor and trailer having different registration numbers would still require a comprehensive insurance for both the tractor and trailer if the trailer were to be attached to a tractor and used for any purpose be it agricultural or commercial. That is the way it should be understood is seen from the fact of how even policies are issued.
6. Learned counsel appearing for the insurer has produced before me pro forma of several types of policies which are issued under different forms of package policy. The forms of package policy provide for issuance of policies for (i) farmer's package/tractor only (ii) farmer's policy-tractor with trolley (iii) Class D policy for tractor only and (iv) Class D policy for tractor with trolley. The policy purchased in this case shows that it was a farmer's package policy and the policy has been issued under the third category referred to Class D farmer's package- tractor only. It will be wrong to understand from clause 4 relating to trailer in category D that no premium is necessary for trailers. Kamboj Pankaj Kumar 2014.05.01 13:57 I attest to the accuracy and integrity of this document Chandigarh FAO No.660 of 2010 (O&M) -6-
7. The liability of the insurer will at all times be seen from how the accident taken place and who was responsible for causing the accident. This Court has an occasion to deal with the situation extensively in the decision in The New India Assurance Company Limited Vs. Sohan Lal and others 2013(1) PLR 706. This Court has held that an instance where non insurance of a trailer would not make a difference would be when the driving of tractor principally caused damage or injury. However, the judgment has clarified that if no part of the tractor is involved in the accident but the trailer is involved such as when trailer capsized and causes injury to a workman who is carried in the trailer or when the trailer unhinges itself from the tow by accident and causes injury to a person or causes damage to any vehicle, question of liability of insurer would arise only if the trailer was also insured. This judgment, in my view, is what would require to be seen as relevant for this case, for I have already brought out that the FIR specifically states that it was the hit by the trailer on the deceased that caused the fatal injury. The non insurance of the trailer in such case would mean that the trailer that caused the accident although attached to a tractor insured allowed for no scope for indemnity to be provided to the owner and driver.
8. The exoneration of the insurance company by the award of the Tribunal was, therefore, perfectly justified although for the additional reasons referred to above. The appeal is dismissed.
(K. KANNAN) JUDGE April 29, 2014 Pankaj* Kamboj Pankaj Kumar 2014.05.01 13:57 I attest to the accuracy and integrity of this document Chandigarh