Madhya Pradesh High Court
Poonam Singh vs Kamla And Ors. on 25 January, 1995
Equivalent citations: 1996ACJ398
JUDGMENT R.D. Shukla, J.
1. This appeal is directed against the award dated 21.1.1986 of M.A.C.T., Dhar, passed in Claim Case No. 17 of 1984 whereby the claimant-respondent Nos. 1 to 7 have been awarded a compensation of Rs. 42,000/- for the death of Khurpia, husband of respondent No. 1 and father of respondent Nos. 2 to 7 in a motor accident on 8.12.1983 on the Manwar Singhana Road, absolving the respondent No. 9 of the liability of payment of compensation and the appellant owner of the vehicle was directed to make good the loss.
2. The brief history of the case is that deceased Khurpia was dealing with the wholesale business of seasonal fruits like banana, etc. He used to purchase unripe bananas and on getting them ripe on furnace, used to sell them. On the date of accident, deceased Khurpia had purchased bananas in wholesale from non-applicant No. 2(the appellant here), the owner of the tractor and was carrying it to village Singhana in the tractor and trolley. He was also occupying one seat in the tractor and trolley as the owner of the goods. One Ballu was also travelling along with him in the tractor. The tractor was rashly and negligently driven by non-applicant No. 1 (respondent No. 8 here). The tractor turned turtle. The deceased Khurpia fell down, sustained injuries, was taken to hospital and was declared dead. The matter was reported and criminal case was registered against non-applicant No. 1 (respondent No. 8 here).
3. It was further claimed that Khurpia was earning nearly Rs. 500/- p.m., he was aged 45 years and all these claimants who are the wife and children of the deceased were wholly dependent on the deceased and they had to suffer loss of consortium, mental agony and loss of love and affection, as such they claimed a sum of Rs. 1,22,000/- as compensation.
The tractor was insured with non-applicant No. 2(respondent No. 9 here).
4. The claim case was resisted by non-applicants (appellant and respondent No. 9 here). Firstly, they denied the fact of rash and negligent driving including the income of Khurpia and the dependency of the claimants.
5. Respondent No. 9, the insurance company, further claimed that the tractor was insured for agricultural purpose and since it was being used for purpose other than agriculture and as such it is not liable to make good the loss.
6. Learned Tribunal after considering the evidence came to a conclusion that claimants, i.e., respondent Nos. 1 to 7 are entitled to a compensation of Rs. 42,000/-with interest at the rate of 6 per cent per annum and by accepting the plea of the insurance company, absolved it from responsibility. The owner of the vehicle was directed to pay the compensation.
Hence this appeal by the owner of the vehicle.
7. The contention of learned counsel for the appellant is that the appellant himself has sold the fruits which were being carried to a destination as contracted, the purchaser of the agricultural goods was accompanying the goods in the tractor and, therefore, it should be deemed to be in agricultural use.
8. As against it, the learned counsel for the respondent insurance company has submitted that the tractor though insured for agricultural purpose was being used for commercial purpose, as such it is not responsible for making good the loss. Learned counsel for respondent Nos. 1 to 7 has also contributed to the submissions of appellant with a qualification that in any way the respondents-claimants may be directed to be paid by any of the non-applicants in the decision of the court.
9. The learned counsel for the appellant has drawn the attention of this court to the fact that the vehicle was a tractor and trolley and insured as such since the use was for commercial purpose as such there was breach of condition.
10. As against it, the learned counsel for the respondent insurance company has submitted that since the owner of the tractor himself was the producer of bananas, he had sold it in wholesale to the deceased and was taking the produce to a destination disclosed by the purchaser and in the presence and occupation of the purchaser and , therefore, the same should be deemed to be the use for commercial purpose.
11. The agricultural purpose would not only mean the cultivation of the land and sowing of seeds but it includes harvesting, taking of the crop to the threshing ground, then to the godown and to the mandi for the purpose of the sale of the agricultural produce.
12. If an owner of the motor tractor carries the agricultural produce to the market for the purpose of sale, it cannot be said that he is using the vehicle for commercial purpose as the sale of agricultural goods or products is an essential part of agricultural operations.
13. It is a matter of common experience that the agricultural produce is taken to mandi or to the market for the purpose of wholesale or there may be a contract between the producer and the purchaser in wholesale that the producer of the agricultural goods may supply it to the person on token. This all will be deemed to be use for agricultural purpose.
14. However, if the tractor and trolley is being used for carrying the load of somebody else other than an agriculturist, maybe of businessman, for carrying to a particular destination that may be taken to be a use for commercial purpose.
15. It may also be observed here that if agriculturist owns the tractor he can hire it and if the tractor has been hired for agricultural purpose, the same principle of carrying the agricultural produce to the threshing ground, to the godown, to the mandi or to the place of the purchaser would apply in such cases also. In the opinion of this court since the deceased Khurpia had purchased the bananas from the agriculturist, owner of the tractor and it was at the instance of such purchaser in wholesale that the bananas were being taken to the destination as per conditions of purchase by Khurpia and, therefore, it will be deemed that the tractor was being used for agricultural purpose.
16. Since deceased Khurpia was the purchaser of bananas and the owner of bananas purchased and, therefore, he had a right to go along with his goods and if he had occupied a seat in the trolley or the tractor for the purpose of carrying agricultural produce to the destination, responsibility ought to have been fastened on insurance company for making good the loss for the death of such purchaser of agricultural produce.
17. The learned counsel for the appellant has referred to a case in New India Assurance Co. Ltd. v. Ansuya 1989 ACJ 400 (AP). In that case a coolie employed for loading and unloading of agricultural goods was taken to be employed for a purpose incidental to agricultural operation and was further accepted as not prohibited under the Rules. In agreement with the principles enunciated by the single Judge of Andhra Pradesh High Court in the aforesaid case, our case in hand is slightly different as here the deceased was owner of the goods purchased in wholesale from an agriculturist, owning the motor tractor fitted with trolley and the purchaser died while carrying those goods purchased in wholesale to the destination as per the contract. As held in the earlier paras, the same would amount to use for agricultural purpose as the supply of the goods in the wholesale to the purchaser at a particular destination or in the mandi would be deemed to be use for agricultural purpose.
18. Learned counsel for the appellant thereafter referred to a Full Bench decision of this court in Harishankar Tiwari v. Jagru 1987 ACJ 1 (MP), wherein it has been propounded that n owner of the goods or hirer of the vehicle while paying hire charges for putting the goods in the vehicle and while he or his employee was required to travel with the goods for its safety in the vehicle, it would be deemed that the hirer was carried in the vehicle for reward while his employee was carried in the vehicle in pursuance of his employment. So the hirer and his employee both have to be covered under the insurance policy and the insurer is bound to pay the compensation for death or bodily injury while the vehicle is met with an accident. I am in respectful agreement with the law propounded therein as it is almost on the similar analogy but here the owner of the agricultural goods was travelling in the motor tractor for the safety of the goods. He will be deemed to be a person travelling for the purpose which is incidental to the agricultural operations.
19. The learned counsel for the respondent insurance company has vehemently argued that once the agricultural goods were delivered to the passenger, he becomes the owner and thereafter, the agriculturist was not required to carry it to its destination and the use of the vehicle thereafter would be deemed to be for commercial purpose.
20. This court is not in agreement with the contention of the learned counsel for respondent insurance company as agricultural purpose could not be limited only to the work confined to the field or to the place of residence of the agriculturist. It would also include the work incidental to it.
21. In view of above, appeal succeeds, it is, therefore, expected that the insurer shall be liable to make good the loss and make payment of the compensation to respondent Nos. 1 to 7. In the facts and circumstances of the matter, parties shall bear their own costs.