The court dismissed an appeal against a motor accident compensation award. It held that the deceased travelling on the tractor's mudguard breached insurance policy terms. Insurer is not liable but is entitled to recover the award from the vehicle owner.
Appeal dismissed; impugned award affirmed; insurer entitled to recover decretal amount from appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
AFR
Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 50 of 2016
Appellant :- Vijay Singh Respondent :- Mahaveer And 3 Others Counsel for Appellant :- Ved Mani Sharma Counsel for Respondent :- Mansoor Ahmad,Vipin Chandra Dixit
Hon'ble Harsh Kumar,J.
This F.A.F.O. has been filed against the judgment and award dated 9.10.2015 passed by Additional District Judge, Court No.16/M.A.C.T., Kanpur Nagar, hereinafter referred to as 'Tribunal' in M.A.C.P. No.639 of 2011, Mahaveer and another Vs. Vijay Singh and others awarding a sum of Rs.2,95,000/- to claimantrespondent Nos.1 & 2 with interest @ 6% per annum and directing National Insurance Company Ltd. to make payment of decretal amount with right of recovery from owner of vehicle.
Brief facts relating to the case are that respondent Nos.1 & 2 filed M.A.C.P. No.639 of 2011 under Sections 166 and 140 of Motor Vehicles Act with averments that their 19 years old son Ranjit Verma was going by Eicher Tractor No.UP 78 BX 3373, hereinafter referred to as 'offending tractor' along with Suraj and Ramkesh by sitting over the mudguard of tractor and due to rash and negligent driving by its driver Ram Singh when tractor came on 80 ft. road, in attempt to save a biker, it turned turtle and Ranjit Verma was crushed under tractor with grievous injuries resulting in his death on the spot. It was also contended that at the time of accident offending tractor being driven by duly licenced driver Ram Singh, was owned by Vijay Singh, appellant and was duly insured with National Insurance Company Ltd. The owner of the vehicle, Vijay Singh filed written statement and in para 12 of written statement denied the occurrence of accident in question by his tractor stating that accident appears to have taken place with some other vehicle and claim petition is liable to be dismissed. Insurance Company filed separate written statement denying the allegations made in petition and in para 11 of the written statement it was contended that an uninsured trolly was attached with tractor and deceased was travelling in trolly and the travelling of deceased was unlawful as of gracious passenger in breach of provisions of Motor Vehicles Act and Rules framed thereunder as well as terms of insurance policy.
Upon pleadings of parties various issues were framed by Tribunal and on issue No.1 it came to the conclusion that accident in question did take place due to rash and negligent driving of offending tractor by its driver in which injuries were sustained to Ranjit Verma, who was travelling on the tractor and died on the spot. On issue Nos.2 & 3 the Tribunal came to the conclusion that at the time of accident offending tractor in question was duly insured with National Insurance Company Ltd., but since the deceased was travelling on the tractor in
breach of terms of insurance policy, and it was being used for carrying of passengers, the same was being plied in contravention of terms of insurance policy. On issue No.4 it came to the conclusion that claimants are entitled to get Rs.2,95,000/- as compensation with interest @ 6% per annum and in view of findings of issue Nos.2 & 3 directed Insurance Company to make payment of compensation giving it right to recover from owner of offending tractor.
Heard Shri Ved Mani Sharma, learned counsel for the appellant, Shri Mansoor Ahmad, learned counsel for claimant-respondent Nos.1 & 2, Shri V.C. Dixit, learned counsel for respondent No.3 and perused the record as well as lower court record.
Learned counsel for the appellant contends that the findings of learned Tribunal that deceased, a laborer was travelling over the tractor in contravention of the terms of policy is wrong and incorrect; that the insurance Company has stated in its written statement that the deceased was travelling in the trolly attached with the tractor, as against which it was proved from evidence on record that deceased was going by sitting over the body/mudguard of tractor; that merely because trolly attached with the tractor, was not insured, the use of tractor may not be considered to be in contravention of terms of policy as trolly is not required to be insured under provisions of Motor Vehicles Act, 1988.
In support of his arguments he has placed reliance on the judgment of Apex Court dated 25.3.2014 in the case of Fahim Ahmad and others Vs. United India Insurance Company Ltd. and others as well as two Division Bench decisions of this Court viz. Ramhet Vs. Bajaj Allianz General Insurance Co. Ltd. and others, (2014) 32 LCD 1927 and United India Insurance Co. Ltd. Vs. Suman and others, 2014 (2) TAC 199 and contended that since deceased was not travelling in trolly so merely for the reason that trolly (not insured) was attached with offending tractor at the time of accident, owner of the tractor may not be held responsible for payment of compensation on death of Ranjit Verma and Insurance Company may not be exonerated from its liability.
Per contra learned counsel for the claimant-respondent and Insurance Company supported the impugned award. The learned counsel for Insurance Company contended that Ashwani Kumar Awasthi, Senior Assistant of Insurance Company was produced as DW-1, who has stated on oath that policy was issued only for agricultural purposes under which no one was authorized to travel over the tractor except its driver; that since tractor is not a passenger vehicle, it is not meant to carry passengers, and carrying of passengers by tractor is clearly in contravention of terms of policy as well as traffic rules.
Upon hearing parties counsel and perusal of record I find that the fact that deceased was travelling over mudguard of offending tractor at the time of accident is fully proved from the evidence on record as well as statement of PW2, an eye witness. The owner of tractor in question i.e. the appellant has not produced his driver, who could have stated on oath before Tribunal that deceased was not travelling over the offending tractor or was not crushed under it. The appellant has not assigned any reason for not producing best evidence for
which an adverse inference has to be drawn against him. In absence of any evidence to the contrary there is no reason to disbelieve or discard uncontroverted testimony to PW-2.
Undisputedly tractor is a vehicle meant for use in agricultural purposes, which carries provision of single and only seat for driver, without any other seat for any of the passenger or labour etc. The copy of registration certificate of tractor in question Paper No.29C/1 on lower court record shows that tractor in question was registered in the name of Vijay Singh, appellant in which seating capacity has been mentioned as one in right side column of registration certificate. In registration certificate of offending tractor, no passenger has been permitted and capacity of only one person as driver is mentioned, which is not disputed.
From above details mentioned in the registration certificate of offending tractor, issued by Transport Authority of Uttar Pradesh it is very much clear that tractor in question was having only a single seat i.e. of its driver and so there was no space for any other person to travel over the tractor as a passenger or laborer. It is pertinent to mention that according to averments made in petition and evidence on record at the time of accident apart from driver, deceased Ranjit Verma, Suraj and Ramkesh were also travelling over the mudguard of offending tractor.
The copy of insurance policy Paper No.29C/2 to 29/C4 on lower court record (at A-5 in appeal) shows that there was limitation of its use, "only for agricultural and forestry purpose." There is nothing on record to show that at the time of accident deceased was travelling over the tractor, a laborer for agricultural or forestry purposes, and even if it was so, he may not be legally entitled or authorized to travel over the mudguard of offending tractor.
Undisputedly the deceased was travelling on mudguard of offending tractor in question allegedly as laborer. The learned counsel for the appellant has failed to show that how a laborer could be legally entitled or authorized to travel over the mudguard of tractor for any purpose whatsoever.
In the case of Fahim Ahmad (supra) relied upon by learned counsel for the appellant, a pedestrian was dashed by tractor attached with trolly, filled with sand for the purpose of construction of underground tank near the farm land for irrigation, and Apex Court finding that it was being used for agricultural purposes refused to exonerate Insurance Company from its liability to pay compensation.
In the case of Ramhet (supra) in the case of accident between motorcycle and tractor attached with trolly, liberty was given to Insurance Company to recover compensation from owner of tractor by court below, which was found incorrect by Division Bench of this Court (Lucknow Bench) at the time of allowing appeal.
In the case of United India Insurance Co. Ltd. (supra) also trolly attached with tractor at the time of accident was loaded with wooden logs and not found
to be used as a commercial vehicle, but Division Bench of this Court held that Insurance Company failed to prove that it was being used for commercial purpose, and dismissing appeal refused to exonerate Insurance Company from liability to pay compensation.
The facts of all the above three cases relied by learned counsel for the appellant are entirely different where offending tractor was attached with uninsured trolly and on account of non-insurance of trolly, the insurer was held not entitled to be exonerated from its liability and so these cases are of no help. In this case the question is confined to the fact as to whether deceased was authorized to travel over mudguard of tractor in question or offending tractor committed breach of terms of insurance policy.
There is nothing on record to show that deceased was an agricultural laborer. Even if so he had no business to travel over mudguard of tractor. Undisputedly tractor was neither a 'passenger vehicle' nor a 'goods vehicle' nor was being used as 'goods carriage' and it is not the case of appellant that deceased was authroized to travel over tractor as gracious passenger being owner of goods in trolly attached with it. The deceased was not even driver of tractor and was not authorized to travel over mudguard of tractor in any capacity whatsoever. It is settled principle of law that use of tractor for carrying any person other than its driver, it amount to causing breach of terms of insurance policy, which is supported by various case laws.
In the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan and others, (2007) 7 Supreme Court Cases 56 where claimant-laborer engaged to dig earth was going by trolly loaded with earth attached the tractor, slipped down and crushed under the wheels sustaining grievous injuries, and the Apex Court held that,
"since (i) trolly was not insured (ii) claimant was neither owner nor driver of tractor and was merely a passenger on trolly attached to tractor, the insurer would not be liable."
In the case of New India Assurance Co. Ltd. Vs. Vedwati and others, (2007) 9 Supreme Court Cases 486 where deceased was returning from Atarra in Tractor No.MP 16 A 2637 after delivering certain goods, tractor overturned due to rash and negligent driving by its driver resulting in his death and Apex Court held that,
"tractor could only be used for agricultural work and since same was being used for carrying passenger, the insurer was not responsible to indemnify for any award. Liability of insurer to pay compensation under Section 147 of Motor Vehicles Act, 1988 does not extend to cases of death of or bodily injury to the owner of goods or his authorized representative carried in goods vehicle."
In another case New India Insurance Company Vs. Darshana Devi and others, (2008) 7 Supreme Court Cases 416 the deceased, owner of goods travelling on mudguard of tractor loaded with Safeda wood, fell down and came
underneath the said tractor and Apex Court held that,
"since tractor was not being used for agricultural purposes for which it was insured rather was used to be plied on hire, the Insurance Company was entitled to recover the amount of compensation from insured, namely, the owner of offending vehicle."
In view of the discussions made above, I have come to the conclusion that the Tribunal has not committed any mistake in holding that deceased was unauthorizedly travelling over the mudguard of offending tractor, in breach of terms of policy and has rightly given right of recovery of compensation to Insurance Company, from owner of offending vehicle.
Learned counsel for the appellant has failed to show any illegality, irregularity or manifest error of fact or law in the impugned award and there is no sufficient ground for interfering with or setting it aside the impugned award.
The appeal is devoid of merits and is liable to be dismissed.
Appeal is dismissed. The impugned award is affirmed.
The insurer, if has deposited entire decretal amount with the Tribunal in compliance with impugned award, the same shall be paid to claimantrespondents in accordance with impugned award. The amount of statutory deposit made by appellant with this Court be sent to Tribunal. Insurance Company will be entitled to recover the decretal amount from appellant as per impugned award.
Let lower court record be sent back to court below along with copy of this judgment for ascertaining necessary compliance.
Order Date :- 30.4.2019 T. Sinha
3 issues framed by the court
Whether the insurer is exonerated from liability when the deceased was travelling on the mudguard of the insured tractor in breach of policy terms.
Whether the use of a tractor for carrying passengers other than the driver constitutes a breach of insurance policy terms.
Whether the right to recover decretal amount lies with the insurance company from the vehicle owner.
Colour shows how this judgement treated each authority
Fahim Ahmad and others Vs. United India Insurance Company Ltd.Distinguished¶20
Fahim Ahmad and others Vs. United India Insurance Company Ltd. and others, dated 25.3.2014
Ramhet Vs. Bajaj Allianz General Insurance Co. Ltd. and others, (2014) 32 LCD 1927Referred¶12
United India Insurance Co. Ltd. Vs. Suman and others, 2014 (2) TAC 199Referred¶12
Oriental Insurance Co. Ltd. Vs. Brij MohanReferred¶26
Oriental Insurance Co. Ltd. Vs. Brij Mohan and others, (2007) 7 Supreme Court Cases 56
New India Assurance Co. Ltd. Vs. VedwatiReferred¶28
New India Assurance Co. Ltd. Vs. Vedwati and others, (2007) 9 Supreme Court Cases 486
New India Insurance Company Vs. Darshana DeviReferred¶30
New India Insurance Company Vs. Darshana Devi and others, (2008) 7 Supreme Court Cases 416
1 provisions across 1 enactments
Vijay Singh
Mahaveer
Ranjit Verma
Harsh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
