Madhya Pradesh High Court
Sukhnandan Ram Sahu vs Oriental Insurance Co. Ltd. And Ors. on 15 September, 1998
Equivalent citations: 1999ACJ750
Author: A.K. Mathur
Bench: A.K. Mathur, Dipak Misra
JUDGMENT A.K. Mathur, C.J.
1. All the aforesaid six cases arise out of one accident, therefore, they are disposed of by this common order.
2. Misc. Appeal Nos. 309, 310 and 311 of 1993 are filed by the appellant Sukhnandan Ram Sahu, owner of the tractor and trolley; Misc. Appeal No. 298 of 1993 is filed by claimants Sukaloo and others; Misc. Appeal No. 299 of 1993 is filed by claimants Bisahin and others and Civil Revision No. 264 of 1993 is filed by the Oriental Insurance Co. Ltd.
3. For convenient disposal of all the aforesaid cases, the facts given in Misc. Appeal No. 309 of 1993 (Sukhnandan Ram Sahu v. Oriental Insurance Co. Ltd.) are taken into consideration.
4. On 28.2.1988 in the evening, the appellant Sukhnandan Ram Sahu, owner of the tractor and trolley, directed his younger brother Madanlal that he should take the tractor to Mahasamund for some agricultural work on the next day and had sent Bisahu, Jailal, Puniyabai, Suklabai, Derha and Mongrabai as coolies to Mahasamund in the tractor-trolley. It is alleged that Madanlal was driving the said tractor-trolley rashly and negligently and he lost the balance near Mongra Bridge and it turned turtle. The accident occurred at about 11.30 p.m. The injured Mongrabai was sent to D.K. Hospital for treatment where she died on 2.3.1988. A report of the said accident was lodged in the Police Station Mahasamund and on the basis of the said report a Crime No. 62 of 1988 under Sections 279, 337 and 304A of Indian Penal Code was registered.
5. It is alleged that the deceased Mongrabai was doing a job of labourer and she was earning Rs. 15 per day. She had left her husband, two minor daughters and one minor son. It is alleged that Sukalu was her second husband and her first husband was Kanhai Rawat. It is alleged that Murha was born from her first husband Kanhai Rawat and at that time Murha was a minor. After the death of Mongrabai, Murha was living with his maternal uncle (Mama). Murha claimed as legal heir of the deceased Mongrabai; therefore, the legal heirs of the deceased Mongrabai filed the claim petition and claimed compensation of Rs. 1,15,000. Therefore, a claim petition was filed by Sukalu and the other dependants of the deceased Mongrabai, vide Claim Case No. 3 of 1990.
6. In the said accident, Suklabai also died; therefore, a claim petition was also filed by her dependants, which came to be registered as Claim Case No. 5 of 1990. The third claim petition was filed on account of death of Jailal, by his dependants for compensation, which came to be registered as Claim Case No. 4 of 1990.
7. All these three claim petitions were preferred on account of the aforesaid accident. The Tribunal, after recording necessary evidence on record from both the sides, came to the conclusion that the death was caused on account of rash and negligent driving by Madanlal and, therefore, the Tribunal decreed the Claim Petition No. 3 of 1990 against the owner of the vehicle in question and awarded a compensation to the tune of Rs. 1,15,200 and apportioned the same between the claimants. Another Claim Case No. 4 of 1990 was decreed against the owner of the tractor by the Tribunal and the Tribunal awarded a compensation to the tune of Rs. 78,800 and it was apportioned between the claimants and the third Claim Petition No. 5 of 1990 was also decreed by the Tribunal against the owner of the tractor and the Tribunal awarded compensation to the tune of Rs. 64,800 and it was apportioned between the claimants.
8. In all these three aforesaid awards, the Tribunal has totally exonerated the insurance company from liability. Hence, the appeals (M.A. Nos. 309, 310 and 311 of 1993) have been filed by Sukhnandan Ram Sahu, owner of the tractor, against exonerating the insurance company of the liability. Appeal (Misc. Appeal No. 298 of 1993) has been filed by the claimants Sukaloo and others and also the appeal (M.A. No. 299 of 1993) has been filed by Bisahin and others, against exonerating the insurance company of the liability.
9. The insurance company has filed the revision (C.R. No. 264 of 1993) against the interim award of Rs. 15,000. Against the aforesaid interim award, a sum of Rs. 7,500 was deposited by the insurance company. Therefore, a sum of Rs. 7,500 deposited by the insurance company is sought to be refunded to it as the insurance company has been exonerated from its liability. Hence, the insurance company has claimed recovery of the amount from the owner of the tractor with interest. Therefore, all the aforesaid cases are clubbed together for disposal.
10. Mr. M.M. Agrawal, learned Counsel for the appellants submits that in fact, the vehicle in question was insured with the insurance company and they are liable to compensate the claimants and in that connection, the learned Counsel has submitted that the view taken by the learned Tribunal that the vehicle was used for the purpose other than agricultural operation; therefore, the insurance company is not liable to compensate, is not correct. Our attention was invited to the statements of Sukhnandan, NAW 1, as also D.D. Joseph, NAW 2, Asstt. Branch Manager of the insurance company. Sukhnandan, NAW 1, has deposed that at the relevant time, he had sent tractor and trolley for agricultural operation and for transportation of his own goods. However, in the cross-examination he was confronted with the document wherein he had stated that the vehicle in question was used for taking Mongrabai to hospital for delivery along with the relations. D.D. Joseph, NAW 2, who was the Asstt. Branch Manager of the insurance company, has deposed that the tractor was insured with the insurance company. He has stated that the vehicle in question was not used for agricultural operation. He has proved the document, Exh. NA 2 and in Exh. NA 2, it is mentioned that "Ek aurat kojachki honi wall thijiska nam Mongrabai hai. Uske ristedar 8 adami bahi usi tractor me aa rahe the. Madanlal Sahu, driver, us tractor ko chala raha the Raste me Mongra Nala ke paas yeh tractor truck ko side dete samay durghtanagrast ho gaya aur palati kha jane se 3 sawari aur 1 driver ki spot me mratyu ho gai, jiski khabar Mahasamund Thane me ki gai." Therefore, as per application moved by Sukhnandan, NAW 1, vehicle was not used for agricultural operation. The learned Counsel submitted that as per statement of Sukhnandan, NAW 1, the vehicle in question was used for agricultural operation. But after going through the statement of Joseph, NAW 2, along with document, Exh. NA2, it appears that the testimony of Sukhnandan, NAW 1, is not trustworthy and vehicle was not used for agricultural purposes. Therefore, the learned Tribunal after assessing the evidence of Sukhnandan, NAW 1 and Joseph, NAW 2, rightly came to the conclusion that the vehicle was not used for agricultural operation, but it was used for another purpose, i.e., taking Mongrabai for delivery along with her relations and the tractor met with accident and four persons died. Therefore, the learned Tribunal has exonerated the insurance company from its liability. We are satisfied that the appreciation of evidence made by the Tribunal is correct.
11. The next question is whether for this accident, the insurance company can be held liable or not. Mr. A.D. Deoras, learned Counsel for the claimants, has strenuously urged before us that it is not open for the insurance company to take any plea other than what is permissible under Section 96 of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act of 1939'). The learned Counsel has specifically invited our attention to Section 96 (2) (b) of the Act of 1939. Learned counsel submitted that Clause (b) of Sub-section (2) of Section 96 of the Act stipulates breach of policy in regard to specified conditions, namely-
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle.
xxx xxx xxx Therefore, it is submitted that it is not open for the insurance company to plead anything other than this and the insurance company cannot be exonerated of its liability. In this connection, our attention was invited to the insurance policy and it was clearly mentioned that the vehicle in question is insured for agricultural operation and also for transportation of own goods. But, the Section 96(2)(b) says that it shall not be used for hire or reward. Now, in the present case, the vehicle in question was not used for agricultural operation or transportation of goods of Sukhnandan. It was used for transporting Mongrabai for delivery along with her relations. That was not the purpose for which the vehicle in question was insured. Therefore, it cannot be said that the vehicle, which can be used for any other purpose, the insurance company should be liable for that. If the accident had taken place for agricultural operation or for transportation of goods, the insurance company would have been made liable. But, in the present case, the vehicle in question was used for transporting some persons for obvious reasons and, therefore, the insurance company cannot be held liable for using the vehicle other than the purpose for which is permissible. Thus, the learned Tribunal has rightly approached the matter. Apart from this, it is also covered under Clause (c) of Sub-section (2) of Section 96, which says that if the vehicle is used for the purpose, which is not allowed by permit, then in that case also, the insurance company cannot be held liable. The tractor along with trolley is not permitted for transporting the persons. Therefore, Clause (c) will also apply in such contingency. The learned Counsel has invited our attention to the decision of Supreme Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC) and also drawn our attention to the observations made in para 13. It was observed:
Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles, notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has, therefore, to be interpreted in the twilight of the aforesaid perspective.
It is true that the provisions of the Motor Vehicles Act, 1939, have to be interpreted which advance the social purpose. But, if the use was not covered by the policy, like the present one, then it cannot be stretched to take a view de hors the intended enactment.
12. The learned Counsel for the insurance company has invited our attention to the decision of this Court given in the case of New India Assurance Co. Ltd. v. A jay, 1994 ACJ 987 (MP). In this case, a person was travelling as a passenger in the tractor and died, the question was whether the insurance company is liable or not. Their Lordships negatived the claim of the claimant and exonerated the insurance company. Likewise, in the case of New India Assurance Co. Ltd. v. Tarawati, 1994 ACJ 822 (P&H), their Lordships, in an identical situation, held that several passengers in a tractor-trolley sustained injuries when the trolley turned turtle and one of them succumbed to his injuries. The passengers were going for giving performance at a marriage function and tractor was insured for agricultural purposes. Therefore, their Lordships have taken a view that the insurance company is not liable for compensation. Similarly, our attention was invited to Full Bench decision of this Court in Kallu Maharaj v. Meenabai, 1989 ACJ 770 (MP) and in that case, their Lordships held that the person was a gratuitous passenger in a goods vehicle, therefore, the insurance company cannot be made liable. Recently, the Division Bench of this Court in Shanker Prasad v. Malti Devi, 1998 ACJ 860 (MP), has taken a similar view that if a travelling passenger in a truck is a gratuitous passenger then the insurance company cannot be held liable. In this case also, 12 persons were travelling in the truck along with goods, for which they were charged fare, Passengers were thus earned in breach of terms of policy. The Division Bench held that the Tribunal was justified in exonerating the insurance company of its liability as the owner has used the vehicle for transportation of goods. Therefore, in the present case, as we have already mentioned above, the vehicle in question was not used for agricultural operation, but was used for taking some passengers for some social work, other than for the purpose of agricultural operation. Hence, the Tribunal has rightly exonerated the insurance company of its liability.
13. Now, coming to the Civil Revision No. 264 of 1993 filed by the insurance company that against no fault liability, they have deposited a sum of Rs. 7,500 and that the same may be ordered to be refunded and no order to this effect was passed by the Tribunal. Since we have taken the view that the insurance company is totally exonerated of its liability. As such, the amount of interim compensation of Rs. 7,500 deposited by the insurance company is entitled to be recovered. Since the owner of the vehicle is liable for the entire compensation, as such, we allow this revision petition and direct that a sum of Rs. 7,500 should be deposited by Sukhnandan, owner of the vehicle within three months in the court and the same may be permitted to be withdrawn by the insurance company. In case, Sukhnandan, owner of the vehicle, does not deposit the said amount within three months from today, the insurance company is entitled to recover the aforesaid amount with interest at the rate of 12 per cent per annum after expiry of three months. This revision petition (C.R. No. 264 of 1993) is allowed.
14. In view of above observations, all the appeals (M.A. Nos. 309, 310, 311, 298 and 299 of 1993) are dismissed. No order as to costs.