Punjab-Haryana High Court
New India Assurance Co. Ltd vs Bimla And Others on 1 December, 2009
Author: A.N. Jindal
Bench: A.N. Jindal
In the High Court of Punjab and Haryana at Chandigarh
F.A.O. No.1928 of 2008 and other connected cases
Date of decision: December 01, 2009
New India Assurance Co. Ltd.
.. Appellant
Vs.
Bimla and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Suman Jain, Advocate for the appellant.
Mr. S.K. Verma, Advocate for the respondent No.1.
Mr. Manoj Chahal, Advocate for the respondent No.2.
None for the respondent No.3.
A.N. Jindal, J
This judgment of mine shall dispose of a bunch of 16 connected
appeals, i.e. FAO Nos. 1928 to 1932, 1934 to 1940 and 1942 to 1945 of
2008 having arisen out of the judgment dated 20.12.2007 passed by the
Motor Accident Claims Tribunal, Jind, awarding compensation as under :-
Case No. & Title Compensation
MACT Case No.170 of 2004, Bimla Devi vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.171 of 2004, Mani Ram and another vs. Raj Rs.1,68,800/-
Kumar and others
MACT Case No.51 of 2005, Bimla vs. Raj Kumar and others Rs.19,000/-
MACT Case No.17of 2005, Mohan vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.50 of 2005, Sandeep (minor through his Rs.14,000/-
natural guardian and father) vs. Raj Kumar and others
MACT Case No.14 of 2005, Seema vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.16 of 2005, Sarbati Devi vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.54 of 2005, Parmeshwari Devi vs. Raj Rs.13,800/-
Kumar and others
MACT Case No.55 of 2005, Hawa Singh vs. Raj Kumar and Rs.2,52,000/-
others
F.A.O. No.1928 of 2008 -2-
***
Case No. & Title Compensation
MACT Case No.53 of 2005, Miss Kavita vs. Raj Kumar and Rs.14,000/-
others
MACT Case No.52 of 2005, Ram Singh and others vs. Raj Rs.2,36,000/-
Kumar and others
MACT Case No. 32 of 2005, Kamla vs. Raj Kumar and Rs.2,09,200/-
others
MACT Case No.78 of 2005, Ompati vs. Raj Kumar and Rs.20,000/-
others
MACT Case No.13 of 2005, Parmeshwari Devi vs. Raj Rs.40,000/-
Kumar and others
MACT Case No.15 of 2005, Bhateri Devi vs. Raj Kumar and Rs.19,000/-
others
MACT Case No.79 of 2005, Nanki vs. Raj Kumar and others Rs.19,000/-
All the claimants were also awarded interest @ 7.5% per annum from the date of filing of the claim petition till realization.
The common point raised in these appeals is that whether the Insurance Company was liable to pay compensation for gratuitous passengers taken by the respondent No.1-driver in claim petition (herein referred as 'the respondent No.1') in a goods carrier vehicle and that the agricultural labourers taken in a tractor could be termed as gratuitous passengers.
Briefly stated the facts of the case leading to the accident are that on 18.11.2004, claimants Bimla Devi, Sarbati, Sheela, Angoori, Kamla, Bhateri, Parmeshwari, Kalawati and other agricultural labourers had gone to the fields of Mahender Teli in village Danoda Khurd for plucking cotton buds. They were working on daily wage basis. The transport for carrying agricultural labourers was to be provided by the owner. After plucking cotton buds from the fields, they were returning to village Narwana from village Danoda Khurd by boarding Farmtrac-30 tractor trolley bearing engine No.2017424 and Chassis No. 2017166, which was later on registered at registration No.HR-22-8372. The respondent No.1 while driving the said tractor trolley rashly and negligently reached some distance ahead of village Danoda Khurd towards Narwana, then all the occupants of the tractor trolley spotted a big truck parked on its correct side of the road and a tyre was also placed on the road for communicating about its going out of order. The respondent No.1 did not notice the said tyre and consequently struck F.A.O. No.1928 of 2008 -3- *** against the tyre, resultantly the trolley turned turtle, all the agricultural labourers travelling in the trolley suffered multiple injuries. Out of the said injured, three ladies namely Sheela, Kalawati and Angoori had died, whereas, the others were treated for the injuries. The FIR regarding the aforesaid accident was lodged against the respondent No.1. Eventually, 16 claim petitions were filed by the different claimants either for the death or the injuries suffered by the injured respectively.
All the claim petitions were contested. In their joint written statement, the respondents No.1 and 2 blatantly denied the accident and stated that they have been falsely involved in the case. The respondent No.3-Insurance Company in its separate reply asserted that the accident had taken place due to the rash and negligent driving of the driver of the Tralla who had parked the same on the road and had placed a tyre in the middle of the road. Besides, some preliminary objections were also taken.
The Insurance Company also took the plea that the driver of the offending truck was not holding a valid driving licence and that the petitions were result of collusion with the claimants and the respondents No.1 and 2.
All the 16 claim petitions were consolidated vide order dated 8.3.2006 passed by the Tribunal and the evidence was recorded in claim petition No.170 of 2004 (Bimla Devi vs. Raj Kumar and others).
From the pleadings of the parties, the following issues were framed :-
1. Whether Smt. Kalawati, Smt. Sheela and Smt. Angoori died and petitioners Smt. Bimla, Smt. Parmeshwari Devi, Smt. Seema, Smt. Sarbati Devi, Mohan, Smt. Kamla, Smt. Bhateri Devi, Sandeep, Smt. Bimla wife of Ram Sarup, Smt. Kavita, Smt. Parmeshwari Devi wife of Banwari Lal, Smt. Ompati and Smt. Nanki Devi suffered injuries in an accident which took place on 18.11.2004 in the area of village Banoda Khurd (District Jind) due to rash and negligent driving of tractor bearing Engine No.2417424, Chassis No.2017166 by respondent No.1?OPP F.A.O. No.1928 of 2008 -4- ***
2. Whether the driver of the tractor (respondent No.1) did not hold a valid driving licence and if so, to what effect? OPR-3
3. Whether the petitioners are entitled to award of compensation and if so, how much and from whom?OPP
4. Relief.
In order to prove the claim petitions, in addition to examining injured Kamla (PW1), Sarbati (PW4), Parmeshwari (PW5), Kavita (PW7), Parmeshwari wife of Banwari Lal (PW8), Bimla wife of Ram Sarup (PW9), Bhateri Devi (PW11), Nanki (PW12), Seema (PW13), Ompati (PW14) and Mohan (PW15), the claimants have also examined Mani Ram (PW2), Hawa Singh (PW6), Ram Singh (PW10), Ram Singh (PW16), Dr. Virender Baswana (P:W17), Dr. R.K. Sharma (PW18) and ASI Rajender Singh (PW19).
To the contrary, respondents no.1 and 2 examined Baljit Singh Additional Ahlmad (RW1) and Raj Kumar (RW2). The respondent No.3- Insurance Company examined Clerk from Licensing Authority Hisar (RW3), Daljit Singh (RW4) Clerk R.T.A. Office Hisar and R.P. Khanna Branch Manager (RW5).
On appreciation of evidence on record, the respondent No.1 was held to be holding a valid driving licence. The Tribunal while observing that the accident had taken place due to the negligence on the part of the driver of the tractor trolley decided issue No.1 against the respondents. Ultimately, all the claim petitions were partly accepted in terms as referred to above.
While developing the argument that the tractor trolley could be said to be a goods carrier vehicle insured for the sole purpose of agriculture and was not meant to carry the passengers, as such, the same could not be insured for carrying any passengers, therefore, the act of the respondent No.1 being in contravention of the terms of the policy, the appellant was not liable to pay any compensation for the persons who had died or received injuries while travelling in the goods vehicle. In order to support this contention, the learned counsel has taken me through the judgment delivered by the Apex Court in case New India Assurance Co. Ltd. vs. F.A.O. No.1928 of 2008 -5- *** Vedwati and others, 2007 (2) PLR 72, wherein it was observed as under :-
"13. The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of " goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the Proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short W.C. Act). There is no reference to any passenger in "goods carriage".
14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore."
Eventually, the Apex Court accepted the appeal and exonerated the Insurance Company from the liability. The facts in the background of the case, as involved in Vedwati's case (supra) were that the deceased when was returning from his village Gokhita from Atarra in tractor bearing registration No. MP-16A-2637, after delivering certain goods there. The tractor over turned as a result of which the deceased died. The Tribunal in the circumstances had held that there was a violation of the terms of the policy as the tractor could only be used for agricultural work and same F.A.O. No.1928 of 2008 -6- *** could not be used for carrying the passengers, whereas, the High Court had upset the findings and ultimately the appeal preferred by the Insurance Company before the Apex Court was accepted.
It was urged that tractor trolley is a goods carriage vehicle and not a transport vehicle. The same could be used only for the agricultural purpose and not to carry the passengers including the labourer. If the tractor is plied for other than agricultural purpose, in that event, the claimant, injured or the deceased could be termed as gratuitous passengers and thus, their claim is not covered under Section 147 of the Motor Vehicles Act, 1988. It was also contended that in the instant case since the tractor having not been used for agricultural purpose and it was only for loading the passengers in that situation there was violation of the condition of the contract of insurance. To the contrary, while strenuously contending that his case is of different nature, counsel for the respondents without denying the use of the tractor trolly for carrying passengers, he has stressed that the labourers who were taken for plucking the buds from the field, were being brought back to their houses, these labourers involved in the accident could in no terms be treated as passengers or much less gratuitous passengers as they were hired to work in the fields and it was the respondent who was to take them to the fields and bring them back. Transport of the labourers by a tractor owner could be considered to be a part of agriculture work. The word "agricultural purpose" should not be construed so strictly as to exclude the workers who were wholly involved, meant for and used for agriculture.
Some merit could be found in the contentions as set up by the respondents. The tractor is specially designed motor vehicle not constructed to carry any load but the same could be used for the purpose of propulsion. It is light motor vehicle; it could be used on or off the road specially for agricultural purposes. It was observed in Nagashetty vs. United India Insurance Co. Ltd. and others AIR 2001 Supreme Court 3356 that the tractor with trolley may not become a transport vehicle and hence the person who had LMV licence may not be said to be eligible to drive a tractor with trolley. Tractor could be put into use and come into aid of farmers for use of agricultural implement/equipments. The word "agricultural use" should F.A.O. No.1928 of 2008 -7- *** not be construed so strictly as to exclude the workers who are being hired, involved, meant for and used for agricultural purpose. It has been the practice of the day that on the country side where transport vehicles are not available and roads are not existing, the farmers who hire the labour to do agricultural work by them to the fields for sowing, irrigating, harvesting, plucking the buds, collecting the fruits, packing or making the bundles have no other source to take them to their fields, they carry them in their tractor trolleys and bring back to their houses after day's work. In such situation, those labourers could safely be said to be instruments of the agriculture as such they could not be termed as gratuitous passengers so as to exclude the liability of the Insurance Company. Our Division Bench in case United India Insurance Company Limited vs. Surinder and others, 2004 (4) R.C.R. (Civil) 211 while holding that the tractor includes the trailer and is covered under the insurance policy, observed as under :-
"Admittedly, the offending vehicle i.e. tractor was insured comprehensively against a premium of Rs.2,076/- with the appellant-Company. Now the question to be seen is whether any agriculture instrument attached to the tractor is deemed to be insured along with the tractor. The word "tractor" has been defined in the Motor Vehicles Act, 1988 as under :-
"The tractor means a motor vehicle which is not itself constructed to carry any load other than (the equipments used for the purpose) or propulsion but excludes a road roller."
A perusal of the definition of word 'tractor' shows that tractor itself is not able to carry any load without the equipments. Therefore, any equipment attached to the tractor is a part of the tractor and covered under the insurance policy."
Labour taken to the fields also could not be treated as passengers. Had there been any source of transportation for taking them to the fields and bringing them back, then certainly they could be taken and considered as passengers but where labourer meant for agriculture is taken to the fields and is used for the agricultural purpose, then the same could F.A.O. No.1928 of 2008 -8- *** also be treated as use for "agriculture purpose". Thus, to carry such labour cannot be termed as breach of condition of policy by the insured.
According to Section 147 of the Act, as amended in the year 1994, the insurance policy would cover the risk of third party as also owner of the goods. It has been observed in case M/s National Insurance Co. Ltd. vs. Balit Kaur and others, 2004 (1) RCR (Civil) 722 that the policy covered the risk of third party labourer carried by the owner for the agricultural purpose, could certainly be said to be third party and it also cannot be said that they were not being used for agricultural purpose. It was observed in case Malkibai and others vs. Badriprasad and others, 1996 ACJ 38 that if the tractor was being used for the agricultural purpose in assistance even for hire of other cultivators, the insurance company cannot be allowed to say that the same was being used not for agricultural purpose.
Thus, while examining the case from all the angles, it would be inappropriate to hold that the respondent acted in violation of the terms of the policy or that the tractor was used other than the agricultural purpose and the persons carried by the driver were the gratuitous passengers.
As regards the quantum of compensation, the respondents being the labourers hail from the poor families and on the death of the ladies and others having suffered injuries, reasonable compensation appears to have been awarded suggesting no interference by this Court.
Hence, all the appeals filed by the Insurance Company stand dismissed.
December 01, 2009 (A.N. Jindal) deepak Judge Whether refer to reporter : Yes.