Madhya Pradesh High Court
The New India Assuarance Co.Ltd. vs Smt.Mithila And Ors. on 4 November, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
NEUTRAL CITATION NO. 2024:MPHC-GWL:19083
1 MA-969-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 4 th OF NOVEMBER, 2024
MISC. APPEAL No. 969 of 2004
THE NEW INDIA ASSURANCE CO.LTD.
Versus
SMT.MITHILA AND ORS.
Appearance:
Shri Arvind Agrawal, learned counsel for the appellant/Insurance Company.
Shri S.S.Bansal, learned counsel for respondents No. 2 to 5.
Shri R.P.Gupta, learned counsel for respondents No. 6 and 7.
ORDER
Appellant/Insurance Company has filed this appeal under Section 173 of Motor Vehicles Act, 1988 assailing the impugned award dated 4/8/2004 passed by Motor Accident Claims Tribunal, Datia in Claim Case No. 59/2002; whereby, respondents No. 1 to 5/claimants have been awarded a compensation of Rs. 2,03,000/- alongwith interest for the death of one Prabhudayal in road accident dated 26/10/2002 and appellant/Insurance Company and respondents No. 6 and 7/driver and owner of the offending vehicle were held liable for payment of compensation amount jointly and severally.
2. Briefly stated facts of the case are that on 26/10/2002 at about 7.30 am when deceased Prabhudayal was returning back from Dinara Road after unloading tractor trolley and was sitting over mudguard of the tractor, it is alleged that due to rash and negligent driving of tractor driver i.e. respondent NEUTRAL CITATION NO. 2024:MPHC-GWL:19083 2 MA-969-2004 No. 6, deceased fell down from the tractor and wheel of tractor and trolley run over him, due to which he died on spot, therefore, claimants filed a claim case seeking total compensation of Rs. 3080000/-, however, by the impugned award learned Claims Tribunal awarded a compensation as stated hereinabove.
3. It is the submission of learned counsel for the appellant/Insurance Company that as per the evidence came on record, deceased was travelling on the tractor which 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 fastened the liability of payment of compensation amount over the Insurance Company; whereas, in such matters, 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).
4. Learned counsel for the claimants opposed the prayer and by filing cross-objections vide I.A.No. 1364/2024 sought enhancement of the compensation amount. As the cross-objections have been filed with delay, an application for condonation of delay ( vide I.A.No. 1446/2024) in filing the NEUTRAL CITATION NO. 2024:MPHC-GWL:19083 3 MA-969-2004 cross-objections has also been filed.
5. Learned counsel for respondents No. 6 and 7 argued in support of the impugned award and prayed for dismissal of the appeal.
6. Heard learned counsel for the parties at length and perused the record as well as impugned award.
7. Appellant/Insurance Company has filed this appeal against the liability part of the impugned award whereas, claimants have filed cross- objections seeking enhancement of the compensation amount.
8. Admittedly the offenidng tractor was insured for agricultural purpose. FIR (Ex.P/1) on which the reliance is placed by the claimants themselves reveals that Tractor after filling stones in trolley from mines gone to Barauni and at the time of accident was returning back after unloading the trolley. The submission of claimants that tractor trolley was being used for vehicle owner itself; however, there is no evidence on record to suggest that at Barauni, owner of the tractor was having any house or property. Claimants are bound by the contents of the FIR and nothing out of the contents of the FIR can be urged. To bring stones from mines and unload it at some other place, did not come under the category of agricultural purpose. Secondly, the contention of learned counsel for the claimants that deceased was travelling over the tractor in the capacity of labour is concerned, 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 NEUTRAL CITATION NO. 2024:MPHC-GWL:19083 4 MA-969-2004 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. Even the deceased cannot be considered a third party for the tractor.
9. As regards cross-objections by the claimants for enhancement of compensation amount is concerned, same are filed with a delay of 20 years, Though an application has been filed for condonation of delay, but the reasons assigned for delay are not bona fide. Hence, application for condonation of delay filed vide I.A.No. 1446/2024 is rejected and consequently, cross-objections are also rejected.
10. In view of aforesaid discussion, since it is clear that at the time of accident, deceased was travelling in the tractor-trolley, there was 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 amount of compensation will be payable by the Owner & Driver of the Tractor only and even the direction of Pay and Recover cannot be issued to the Insurance Company.
11. Accordingly, the appeal filed by Insurance Company is allowed NEUTRAL CITATION NO. 2024:MPHC-GWL:19083 5 MA-969-2004 and Insurance Company is exonerating from its liability completely and instead owner and driver of the offending vehicle are directed to make the payment of the compensation amount alongwith interest within two month from today to the claimants.
(ROOPESH CHANDRA VARSHNEY) JUDGE JPS/-
JAI PRAKASH SOLANKI 2024.11.06 11:11:27 +05'30'