Madhya Pradesh High Court
Arun Kumar Patel And Anr. vs Smt. Terasi Saket And Ors. on 15 November, 2007
Equivalent citations: 2008(1)MPHT457, AIR 2008 (NOC) 1189 (M. P.)
Author: Arun Mishra
Bench: Arun Mishra, S.A. Naqvi
ORDER Arun Mishra, J.
1. The appeal has been preferred by the owner and driver aggrieved by Award dated 29-6-04 passed by Addl. Motor Accident Claims Tribunal, Mauganj, District Rewa in Claim Case No. 33/2001.
Claimants/respondent Nos. 1 to 7 preferred claim petition on account of death of Shyamlal who met with an accident on 4-6-01, he was travelling in tractor trolley. Vehicle was driven by Shravan Patel, it was owned by Arun Patel and insured with National Insurance Co. Ltd. The claimants submitted that the deceased was coming back in the tractor trolley after administering fertilizers in his agricultural field, deceased was shoe mendor, he used to sell shoes in the market, compensation of Rs. 57,60,000 was claimed.
2. Owner denied the factum of accident in his reply, other facts were also denied. It was contended that vehicle was insured with National Insurance Co. Ltd., liability, if any, was required to be borne by the insurer.
3. The insurer in its reply denied the liability to make payment of compensation, it was specifically pleaded that in the tractor trolley marriage party was being carried at the time of accident. Thus, there was violation of terms and conditions of policy as tractor was insured for the purpose of agriculture use only, risk was not covered for such user within the purview of the policy. Driver was not having valid and effective driving licence to drive the vehicle.
4. The Tribunal has found that there was violation of policy as at the time of accident in the tractor trolley the marriage party was being carried, thus, insurer has been exonerated. Compensation of Rs. 1,73,000 has been awarded alongwith interest at the rate of 8% per annum from the date of filing of claim petition till realization. Dissatisfied with the same, owner and driver have come up in appeal.
5. Shri Sanjay Patel, learned Counsel appearing for appellant has submitted that the finding recorded by the Tribunal that marriage party was being carried at the time of accident has not been established by satisfactory evidence. The evidence adduced on behalf of respondents has been wrongly relied upon. He has further submitted that lodger of FIR has not been examined, thus, facts mentioned in the FIR that marriage party had been carried has not been established, thus, finding of Tribunal deserves to be set aside. He has also placed reliance on Rule 97 of Motor Vehicle Rules as applicable in M.P. which permits carrying of Barat in the trolley. Thus, he has submitted that user being permitted under the rules, it has to be considered even for the purpose of insurance policy, the claimant was a third party as such risk is covered under Section 147 of Motor Vehicles Act.
6. Shri Ajit Agarwal, learned Counsel appearing on behalf of Insurer has submitted that there was violation of policy, it was not necessary to prove the FIR and examination of its lodger as it was a document of claimants, once they have filed it and document has been exhibited, it has been rightly taken into consideration by the Tribunal. Apart from that there is other evidence on record indicating that tractor trolley was being used for the purpose of transporting marriage party which was not covered under the insurance policy.
7. First we consider whether marriage party was being carried at the time of accident, though it has been stated by Terasi (C.W. 1), widow of deceased, that her husband was coming back after administering fertilizer from the agricultural field, at that time he met with an accident, she has denied the suggestion made in cross-examination that he was coming back from the marriage party. Kedar (C.W. 2) has also supported the version of C.W. 1 and has also denied the suggestion made in the cross-examination that marriage party was being carried. Sarvjeet Singh Jammu (N.A.W. 1) has stated that enquiry was conducted by the insurer, it was found in the enquiry that marriage party was being carried in the tractor trolley at the relevant time, deceased was resident of Jaunpur and had come to attend the marriage, he himself was not personally aware of the facts. He has deposed on the basis of enquiry report. Rajesh Trivedi (N.A.W. 2) had made an enquiry, he has stated that on enquiry he has found that marriage party was being carried, no doubt about it that statements of Rajesh Trivedi and Sarvjeet Singh Jammu may not be enough to hold that marriage party was being carried, but when we consider the FIR which was the immediate document and there was no doubt with respect to correctness of the facts mentioned therein that marriage party was being carried at the time of accident in the tractor trolley, that being so the finding recorded by the Tribunal is based on proper assessment of evidence, may (sic: witnesses) may lie but circumstances do not is the cardinal principle of evaluation of evidence. The immediate conduct evidence reflected in the shape of FIR indicates that marriage party in fact was being carried. It was not necessary to examine the lodger of the FIR as the document was filed on behalf of claimants and they have relied upon it, once they have relied upon it, the document could have been considered forming part of evidence and its evidentiary value has been found in the instant case. We place reliance on a decision of Apex Court in Oriental Insurance Company Ltd. v. Premlata Shukla and Ors. Civil Appeal No. 2526/2007, decided on 15th May, 2007, in which it has been considered that FIR can be relied upon, it is not necessary to examine the lodger of FIR so as to prove it. In the facts and circumstances of the case, we are of the opinion that the finding recorded by the Tribunal is proper in the instant case that there was violation of policy inasmuch as marriage party was being carried at the time of accident, case set up by the claimants has been rightly rejected.
8. Coming to the submission raised by Shri Patel with respect to absence of issue as to breach of policy in asmuch as marriage party was being transported, in our opinion, parties have adduced the evidence and question of breach of policy was clearly involved, there was issue with respect to liability of insurer, hence no prejudice has been caused to the case of claimants in any manner.
9. Coming to the submission based on Rule 97 of M.P. Motor Vehicle Rules, that has been considered by a Full Bench of this Court in Bhav Singh v. Smt. Savirani and Ors. M.A. No. 687/99, decided on 11-10-07 : 2007(4) M.P.H.T. 460, in which the Full Bench has opined that Rule 97 is not with respect to Section 147 of Motor Vehicles Act, Rule 97 has been framed with respect to permit conditions not to cover the risk under Section 147, which is contained in a different chapter of Motor Vehicles Act. Full Bench of this Court has held thus:
12. Regarding the Division Bench judgment in Sarvanlal and Ors. (supra), we find that the Division Bench has relied on not only the judgment of the Full Bench Jugal Kishore (supra), but also Clause (vii) of Rule 97 of the Motor Vehicles Rules, 1994 (for short 'the Rules of 1994') made by the State of M.P. So far as the judgment of the Full Bench in Jugal Kishore (supra) is concerned, we have already clarified the position of law. Regarding Clause (7) of Rule 97 of the Rules of 1994, we find that the Rules of 1994 have been made by the State of M.P. under Section 96 of the Act and in particular Sub-section (2)(xxxi) which provides that without prejudice to the generality of the foregoing power, rules under Section 96 may be made with respect to the carriage of persons other than the driver in goods carriage. Section 96 is placed in Chapter V of the Act which relates to "Control of Transport Vehicles". Sub-section (1) of Section 96 of the Act states that the State Government may make rules for the purpose of carrying into effect the provisions of Chapter V. Hence, Rule 97 of the Rules of 1994 has been made by the State Government to give effect to the provisions of Chapter V of the Act, which, as we have seen, relates to 'control of transport vehicles'. These rules obviously cannot have a bearing in interpreting the provisions of Chapter XI of the Act including Sections 145 and 147 of the Act. As we have indicated above, the liability of the insurer to indemnify the insured in respect of death or bodily injury suffered by a passenger or an employee would be covered by the provisions of Section 147 of the Act or the terms and conditions of the insurance policy. Thus, the decision of the Division Bench in Sarwan Lal (supra), in so far as it relies on Rule 97 of the Rules of 1994 to hold the insurer liable for death or bodily injury suffered by the passengers does not lay down the correct law.
10. In view of the aforesaid we do not find any merit in the appeal, the appeal is dismissed. No costs.