Gujarat High Court
Santokben Anupsing Chauhan & 2 vs Sursing Motibhai Baria & 3 on 14 December, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/FA/3874/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3874 of 2008
With
CROSS OBJECTION NO. 10 of 2010
In
FIRST APPEAL NO. 3874 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SANTOKBEN ANUPSING CHAUHAN & 2....Appellant(s)
Versus
SURSING MOTIBHAI BARIA & 3....Defendant(s)
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Appearance:
MR MTM HAKIM, ADVOCATE for the Appellant(s) No. 1 - 3
MR RAJNI H MEHTA, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 2 , 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 14/12/2015
ORAL JUDGMENT
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1. This first appeal presents peculiar facts and concerns the limited question of liability of Oriental Insurance Company Limited, opponent No.3 of the first appeal filed by the original claimants.
2. Brief facts are as under:
On 07.01.2001, at about 6.30 in the evening, opponent No.4 was driving a tractor with attached trailer. The tractor was owned by opponent No.1 but the trailer was owned by opponent No.2. Opponent No.3 company, had insured the trailer. The tractor was uninsured.
3. According to the claimants, the tractor was being driven rashly and at excessive speed. Even the joint, by which the trailer was attached to the tractor, was defective. As a result, the trailer got detached from the tractor and its one of the wheels ran over Anupsinh Chauhan, who was standing on the roadside causing his death. The accident caused bodily injuries to other bystanders also. We are, however, not concerned with their claim petitions since neither side has appealed against the judgement and award of the Claims Tribunal.
4. Widow and two minor children of deceased Anupsinh, therefore, filed the claim petition seeking compensation of Rs. 8 lacs from the driver, the owner of the tractor and the trailer, and the insurance company of the trailer. The Claims Tribunal computed compensation of Rs. 6,66,488/-.
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C/FA/3874/2008 JUDGMENT
5. Before the Claims Tribunal, the insurance company of the trailer had taken a stand that the trailer cannot be considered a motor vehicle since it cannot move on its own. The proposal note for issuance of the insurance policy and the insurance policies were produced on record to contend that the trailer was insured alongwith a specific tractor. The insurance cover would apply only when the trailer is being driven by such tractor and none else.
6. The Claims Tribunal did not accept the stand of the insurance company fully. The Tribunal held that the tractor and trailer were both involved in the accident and apportioned the liability of compensation equally between the two vehicles and thereby held the insurance company liable to the extent of 50% of the compensation of Rs. 6,66,488/- computed by it. This judgement and award has given rise to this appeal by the claimants who seek full compensation that may be recovered from all the opponents jointly and severally. The insurance company has filed cross objection claiming no liability at all.
7. One Hemantbhai Godhani, Development Officer of the Oriental Insurance Company was examined at Exh 75. In his examination-in-chief, he stated that the policy of insurance was issued for a specific tractor and in consideration of an additional premium of Rs. 317/- indemnity was provided under the policy to extend to the trailer also. According to him, this single policy is issued with respect to both the vehicles. He stated that, the Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT coverage given to the trailer was by way of extension of insurance of the tractor. According to him, the tractor and the trailer were insured as a single vehicle and therefore, a single policy was issued. The trailer when attached with another tractor would not be covered by the insurance policy. In the cross-examination, however, he agreed that the trailer cannot move on its own. In the insurance policy there was no condition which prohibited the use of trailer with another tractor. The proposal form was produced at Exh 82 and even in such proposal form, no such condition was imposed.
8. In addition to the deposition of said Shri Hemantbhai Godhani we also have the insurance certificate at Exh 74 and the proposal-cum-input form at Exh 82 issued by the insurance company before issuance of the insurance policy. Perusal of the proposal of insurance Exh 82 would show that particulars of vehicles to be insured were indicated as tractor and trailer. For tractor premium of Rs. 507/- was quoted. For trailer, insurance premium of Rs. 317/- was quoted. Similar reference to the computation of premium is found in the insurance policy Exh 74 also. Neither of these two documents contained any condition which required the insured to use the same set of tractor and trailer to enjoy the insurance coverage. In other words there was no condition in the insurance contract that the trailer could not be used with the aid of another tractor.
9. Insofar as the manner, in which, the accident took-place, there is Page 4 of 13 HC-NIC Page 4 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT no dispute. This has come in the form of eyewitness accounts, particularly, of one Jayantibhai Baria Exh 54. He was present when the accident took-place. His son also received injuries. With respect to the computation of compensation also neither side has raised any grievance about the conclusions of the Claims Tribunal. The sole question presented for my consideration was, whether the insurance company of the trailer could be held liable to satisfy the award either in full or in part?
10. To recapitulate relevant undisputed facts are that the accident took-place when the tractor and trailer were being driven by opponent No.4. The trailer got detached and dashed against several persons standing by the road side. The tractor was uninsured. The trailer was insured by opponent No.3.
11. The manner, in which, the accident took-place leaves no manner of doubt that the driver of the tractor was solely negligent in causing such accident. Had he maintained the tractor and trailer in proper condition, the joint would not have broken easily. Even otherwise, had he driven his vehicle at a moderate speed without jerking the vehicle, it is unlikely that even the joint not well maintained would have snapped. In either case, inescapable conclusion is that, this accident would not have taken-place if the tractor was not carrying the trailer. It is not the case of the claimants or even that of the opponents Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT that the tractor alone collided with any of the bystanders and which accident would have occurred with or without the trailer in toe of the tractor. In other words, had there been no trailer, there would have been no accident. On the basis of these twin conclusions viz. that the driver of the tractor was solely negligent in causing the accident and in absence of the trailer, the accident would not have occurred, one would have to ascertain whether the insurance company of the trailer can be asked to pay the compensation.
12. Term "Motor Vehicle" has been defined in Section 2(28) of the Motor Vehicles Act, 1988.
" "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimeters]".
13. The term "Tractor" has been defined under Section 2(44) of the said Act as under:
" "tractor" means a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller."Page 6 of 13
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14. The term "Trailer" has been defined under Section 2(46) as under:
" "trailer" means any vehicle, other than a semi trailer and a side-car, drawn or intended to be drawn by a motor vehicle."
15. Thus, any vehicle, which is mechanically propelled and is adapted for use upon roads, whether such propulsion is transmitted from an external or internal source, is motor vehicle. It includes chassis to which a body has not been attached and a trailer. The definition of term "motor vehicle" thus is provided in the means and includes expression. In the includes portion trailer is specifically covered. For better clarification the word 'Trailer' itself has been defined under Section 2(46) as to mean any vehicle other than a semi trailer and a sidecar drawn or intended to be drawn by a motor vehicle. The fact, that the trailer in question was one which would be covered under Section 2(46) of the Act is beyond dispute. By virtue of Section 2(28) of the Act, such trailer when attached to a mechanically propelled vehicle becomes a motor vehicle. It is, therefore, not possible to accept the contention of the insurance company that the trailer is not a motor vehicle.
16. When thus such a motor vehicle was being driven by the licensed driver and which, as concluded above, was being driven in a rash and negligent manner, the insurance company, which had insured such trailer, is duty bound to cover the risk of Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT a third party who may receive any injury on account of accident arising out of use of such motor vehicle and resulting from such rash and negligent act of the driver. As recorded earlier, but for the trailer, being joined to the tractor, the accident in question would not have occurred. This is one more reason to hold the insurance company of the trailer liable to satisfy the award in its entirety. The insurance company could have avoided its liability if it is established that a condition of the insurance required the insured to use the trailer only with a specific tractor which was covered under the insurance policy. This admittedly is not the case before us. As conceded by the witness of the insurance company, neither the insurance policy nor the cover note specified any such condition. Merely because therefore the insurance policy was issued with respect to a particular tractor and the trailer in question would not imply any condition that the same must be used simultaneously so as to be able to enjoy the insurance coverage. In absence of any such condition, the owner cannot be deprived of the insurance coverage and, at any rate, the third party cannot be deprived of the right of full compensation. Insurance is a contract of indemnity. No condition which does not form part of such contract can be read by implication.
17. An interesting issue arose in case of Parsottambhai Kanbhai vs. Panchiben @ Ratanben reported in 1977 ACJ
441. The facts in the said case were that, a tractor attached with the trailer was being driven on the fateful day. Because of the Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT negligent driving by the tractor, the trailer protruded out of the alignment and hit a motor cyclist causing fatal injuries. The tractor and trailer were both insured but by different insurance companies. The Claims Tribunal awarded a compensation of Rs. 25,000/- to the claimants. The insurance company of the tractor did not challenge the award, that of the trailer filed appeal before the High Court alongwith the owner and driver and contended that the trailer was not a motor vehicle at all and that the sole negligence would be that of the driver of the tractor. The insurance company of the tractor, therefore, alone be held liable to pay the compensation. A Division Bench of the High Court rejected both the contentions making following observations:
"10. As the law imposes an obligation for taking out insurance against third party risks in respect of a motor vehicle, it became necessary to take insurance in respect of the tractor and trailer. The peculiar argument that Mr. Chhatraparti has developed arises from the fact that the owner of the tractor and the trailer being the same person, yet he chose to take insurance in respect of the tractor from one insurance company and in respect of the trailer from the other insurance company. If this contention was put forward before the Tribunal, a very interesting question would have been argued about the inter se liability of both the insurance companies or one against the other. But we are called upon to examine this question on the facts placed before us. The liability to compensation arises from the use of the motor vehicle. The contract of insurance is a contract of indemnity. When in this case, both the tractor with the attached trailer were moving along the road, both the vehicles were used in a public place. The accident occurred in a public place. The trailer at that time was attached to the tractor, as would be presently pointed out while examining the contention of Mr. Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT Chhatrapati on the question of negligence. It would be worth while to keep in mind the finding of the Claims Tribunal that it was the trailer which knocked down the deceased. If the trailer was possibly not attached, the gruesome accident would as well have been avoided. This would become clear when we examine the next contention. Suffice it to say here that the liability to compensation of the insured has arisen by the use of both the tractor and the trailer and both" the insurance companies in the facts and circumstances of this case would be liable to satisfy the claim of the claimants. What is being examined is the contention of Mr. Chhatrapati that the trailer being not a prime mover, not having locomotion, the insurance company of the trailer would not be liable as the accident occurred when the trailer was being pulled by the tractor and the driver of the tractor was shown to be negligent. It is a very interesting argument for this reason that if Mr. Chhatrapati is wholly right, then the trailer need not be insured at all. A trailer, can never be driven by itself. It has no locomotion. It can be attached to a tractor. It can be attached to something which can pull it. The driver would always be on that part of the vehicle which provides motion to the trailer. Therefore, the trailer by itself cannot be used in a public place and by its use, no accident can occur and if some accident occurs, it would not be on account of the fault of the driver because the trailer would have no driver of its own. We fail to follow and where to go. Therefore, it is not possible to accept the contention of Mr. Chhatrapati and it must be negatived.
11. ... ... ... ... ... ... There is evidence to show that the right corner of the trailer dashed with the rider of the motor cycle. Visualize the two vehicles coming from the opposite direction and the attached trailer does not move immediately in the same line as the prime mover. That exactly happened in this case. After seeing the rider of the motor cycle from near, the driver of the tractor suddenly swerved to his left projecting the right side of the trailer which knocked down the motor cyclist. The accident is thus clearly attributable to the carelessness on the part of the driver of the tractor. The Tribunal, on an analysis of all the evidence in the case, has recorded a finding that the Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT accident was the outcome of the rash and negligent driving of the tractor by original respondent No.2.
12. Incidentally, we may point out relating to the first point of Mr. Chhatrapati that it was the right corner of the trailer that knocked down the deceased. If there was no trailer, possibly, the tractor would have moved away and there would not have been an accident. Therefore, the first contention has also to be rejected in the facts and circumstances of this case, because the trailer is directly involved in the accident and the driver of the tractor is ipso facto driver of the trailer. No other approach is possible."
18. Under the circumstances, the approach of the Tribunal, that the insurer of the trailer would bear only 50% of the compensation cannot be accepted. This is not a case where two separate vehicles were involved in an accident where their liabilities can be segregated even for the internal separation. Here is the case, where driver of the tractor with a trailer acted negligently. The accident took-place on account of use of trailer as a motor vehicle. One cannot look at this accident as a negligent act of the trailer or of the tractor. Negligence is that of a human agency. The resultant accident occurred on account of use of a motor vehicle. In the result, the opponent No.3- insurance company is held liable to satisfy the entire award and not just 50%, as provided by the Claims Tribunal.
19. Learned counsel Mr. Mehta for the insurance company, however, vehemently contended that the insurance company should be allowed to recover 100% of the compensation from Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT the owner of the tractor. I am afraid no such direction can be issued at least in the present appeal. First and foremost, the question of apportioning the liability even for internal consideration would arise in case of joint tortfeasors viz. when there are more than one human agencies involved in acting negligently which results into an unfortunate accident. In case of a motor accident, when two persons in the process of use of motor vehicle act negligently and rashly; qua the injured third party, they would be treated as joint tortfeasors and sofar as claimant is concerned, the extent of their inter-se liabilities would be of no consequence. This may have bearing on the extent of the burden that each may weigh to satisfy the award, nevertheless, sofar as the claimant is concerned, would be at full liberty to recover the entire compensation from either of them and even may chose to sue only one of them. This principle have been elaborately discussed by the Supreme Court in recent judgement in case of Khenyei vs. New India Assurance Company Limited and ors. reported in (2015) 9 SCC 273. It is also held and observed in such judgement that, in case of joint tortfeasors being impleaded in the claim petition and evidence is sufficient, it is open for the Court or the Tribunal to determine the inter-se extent of composite negligence of the drivers. Such determination, however, would be only for the purpose of their inter-se liability so that one may recover the same from the other after making whole of the payment to the plaintiff or claimant to the extent it has satisfied the liability of the other. Present is not a case of joint tortfeasors but a case of use of an Page 12 of 13 HC-NIC Page 12 of 13 Created On Thu Dec 17 01:31:55 IST 2015 C/FA/3874/2008 JUDGMENT integrated motor vehicle. When combined with a tractor, the trailer for the purpose of the Motors Vehicles Act is a motor vehicle. I do not find that the Motor Vehicle Act considers a trailer when propelled by a tractor as a separate motor vehicle. There is no question therefore of allowing the insurance company at least in the present litigation to recover from the owner of the tractor any portion of the compensation which it may pay to the claimants. What would be the outcome of the suit, if the insurance company files against the owner of the tractor is neither possible nor necessary for me to predict.
20. In the result, appeal of the claimants is allowed. The claimant shall receive the entire compensation of Rs.6,66,488/- awarded by the Claims Tribunal jointly and severally from all opponents and particularly opponent No.3-insurance company. First Appeal is disposed of. Cross objections are dismissed. R & P to be transmitted back to the Trial Court.
(AKIL KURESHI, J.) Jyoti Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Dec 17 01:31:55 IST 2015