Dismissed

Ramesh Uraon And Anr. v. Mu. Brajmuni Bai And Ors.

Chhattisgarh HC6 Oct 2023MAC/1001/2015

Case brief

AI extract

What is this about?

High Court allowed appeals filed by driver and owner of a tractor challenging an award of motor accident claims tribunal. The court held that the insurance company was not liable to pay compensation as the vehicle was overloaded with passengers without extra premium, constituting a breach of policy conditions.

What did the court decide?

Appeals filed by driver and owner were dismissed; impugned award confirming liability on driver and owner was upheld.

Ramesh Uraon And Anr. Vs Mu. Brajmuni Bai And Ors. — Insurance | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 991 of 2015

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Ramesh Uraon, S/o Malu Uraon, aged about 32 Years, CasteUraon, R/o Dobh, Tahsil- Bagicha, District- Jashpur, Chhattisgarh. (Driver)

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Chohantus Xalxo, S/o Sarju Xalxo, aged about 45 Years, CasteUraon, R/o Tameya, Tahsil- Bagicha, District- Jshpur, Chhattisgarh. (Owner)

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----Appellants

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Versus

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Sukhu Ram, S/o Potma Ram, aged about 40 Years,

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Minor Bifeiya Ram, S/o Sukhuram, aged about 15 Years,

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Minor Ku. Prameshwari Bai, D/o Sukhu Ram, aged about 8 Years,

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Respondent Nos. 2 & 3 are minor through Legal Guardian Father Sukhu Ram,

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Respondent Nos. 1 to 3 are by caste- Korwa, R/o Tameya, TahsilBagicha, District- Jashpur, Chhattisgarh. (Claimants)

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The Branch Manager, Royal Sunderam Allianz Insurance Company Limited, Branch Office- Bilaspur, Chhattisgarh. (Insurer)

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---- Respondents

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MAC No. 992 of 2015

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Ramesh Uraon, S/o Malu Uraon, aged about 32 Years, CasteUraon, R/o Dobh, Tahsil- Bagicha, District- Jashpur, Chhattisgarh. (Driver)

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Chohantus Xalxo, S/o Sarju Xalxo, aged about 45 Years, CasteUraon, R/o Tameya, Tahsil- Bagicha, District- Jashpur, Chhattisgarh. (Owner)

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---Appellants

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Versus

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Dashasan @ Meghu Yadav, S/o Labho Yadav, aged about 34 Years, by Caste- Lohar, R/o Tameya, Tahsil- Bagicha, DistrictJashpur, Chhattisgarh. (Claimant)

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The Branch Manager, Royal Sunderam Allianz Insurance Company Limited, Branch Office- Bilaspur, Chhattisgarh. (Insurer)

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---- Respondents

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MAC No. 994 of 2015

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Ramesh Uraon, S/o Malu Uraon, aged about 32 Years, CasteUraon, R/o Dobh, Tahsil- Bagicha, District- Jashpur, Chhattisgarh. (Driver)

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Chohantus Xalxo, S/o Sarju Xalxo, aged about 45 Years, CasteUraon, R/o Tameya, Tahsil- Bagicha, Distt. Jashpur, Chhattisgarh. (Owner)

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----Appellants

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Versus

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Mu. Taravati Bai, Wd/o Late Shankar Yadav, aged about 27 Years,

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Minor Ku. Khemvati Yadav, D/o Late Shankar Yadav, aged about 7 Years,

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Minor Hemant Yadav, S/o Late Shankar Yadav, aged about 5 Years,

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Kumro Yadav, S/o Gurbaru Yadav, aged about 53 Years,

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Smt. Kumari Yadav, W/o Kumro Yadav, aged about 50 Years, Respondent Nos. 2 & 3 are minor through legal guardian mother Taravati Bai,

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Respondent Nos. 1 to 5 are by Caste- Mahkul, R/o Tameya, Tahsil- Bagicha, Distt. Jashpur Chhattisgarh. (Claimants)

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The Branch Manager, Royal Sunderam Allianz Insurance Company Limited, Branch Office- Bilaspur, Chhattisgarh. (Insurer)

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---- Respondents

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MAC No. 1001 of 2015

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Ramesh Uraon, S/o Malu Uraon, aged about 32 Years, Caste Uraon, R/o Dobh, Tahsil-Bagicha, District Jashpur, Chhattisgarh. (Driver)

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Chohantus Xalxo, S/o Sarju Xalxo, aged about 45 Years, Caste Uraon, R/o Tameya, Tahsil - Bagicha, District Jashpur, Chhattisgarh. (Owner)

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----Appellants

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Versus

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Mu. Brajmuni Bai, W/o Late Kalinder Ram, aged about 30 Years,

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Minor Ku. Urmila Bai, D/o Late Kalinder Ram, aged about 13 Years,

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Minor Ku. Pramila Bai, D/o Late Kalinder Ram, aged about 11 Years,

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Minor Prasiddha Ram, S/o Late Kalinder Ram, aged about 9 Years,

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Ludu Ram, S/o Ramdayal Ram, aged about 60 Years,

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Smt. Surji Bai, W/o Ludu Ram, aged about 55 Years,

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Respondent Nos. 2 to 4 are minor through Legal Guardian Father Brajmuni Bai,

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Respondent Nos. 1 to 6 are by caste Lohar, R/o Tameya, Tahsil Bagicha, District Jashpur, Chhattisgarh. (Claimants)

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The Branch Manager, Royal Sunderam Allianz Insurance Company Limited, Branch Office Bilaspur, Chhattisgarh. (Insurer)

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---- Respondents

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For Owner and Driver	Mr. Rishikant Mahobia and Ms. Suchita Bais, Advocates.
For Claimants	Mr. J.K. Saxena and Mr. Ashwell Franklin, Advocates.
For Insurance Company	Mr. Harshmander Rastogi, Advocate.

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Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board

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06/10/2023

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As all the appeals filed by Owner & Driver of the Tractor bearing

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registration No.CG14-E-1486 and Trolley bearing registration

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No.CG14-E-1487 (hereinafter referred to as the offending vehicle) arise out of the common award dated 20.03.2015 passed by the Additional Motor Accident Claims Tribunal, Jashpur, C.G. in separate Claim Case No.03/2014 in MAC No.991/2015, Claim Case No.17/2014 in MAC No.992/2015, Claim Case No.18/2014 in MAC No.994/2015 and Claim Case No.16/2014 in MAC No.1001/2015, involving the same accident, they are being disposed of by this common judgment. For the sake of convenience, the parties shall hereinafter be referred to as per their description before the Tribunal.

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As per averments in the claim petitions, on 17.08.2012, injuredDashasan @ Meghu Yadav and deceased persons- Chhandni Bai, Kalinder and Shanker Yadav, were carrying rice in the offending vehicle from village Tamaya. However, on the way, driver of the offending vehicle/non-applicant No.1 by driving the offending vehicle in a rash and negligent manner caused the accident, as a result of which, deceased- Chhandni Bai and Shanker Yadav have died on the spot whereas Kalinder Ram also sustained injuries and died during the course of treatment at Jashpur Hospital and Dashasan @ Meghu Yadav also received grievous injuries over his body.

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On claim petition i.e. Claim Case No.03/2014 being filed by the claimants- Husband and children under Section 166 of the Motor Vehicles Act claiming compensation of Rs.25,70,000/- under

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various heads, the Tribunal considering the evidence led by the parties, by the impugned award granted a total compensation of Rs.4,63,000/- with interest @ 9% p.a from the date of application till its realization, fastening the liability on non-applicants no. 1 & 2 (driver and owner) while exonerating Insurance Company/nonapplicant no.3 on the ground of breach of policy conditions.

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On claim petition i.e. Claim Case No.17/2014 being filed by the claimant/injured- Dashasan @ Meghu Yadav under Section 166 of the Motor Vehicles Act claiming compensation of Rs.75,000/- under various heads, the Tribunal considering the evidence led by the parties, by the impugned award granted a total compensation of Rs.25,081/- with interest @ 9% p.a. from the date of application till its realization, fastening the liability on non-applicants no. 1 & 2 (driver and owner) while exonerating Insurance Company/non-applicant no.3 on the ground of breach of policy conditions.

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On claim petition i.e. Claim Case No.18/2014 being filed by the claimants- wife, children and parents of deceased under Section 166 of the Motor Vehicles Act claiming compensation of Rs.31,40,000/- under various heads, the Tribunal considering the evidence led by the parties, by the impugned award granted a total compensation of Rs.5,57,400/- with interest @ 9% p.a from the date of application till its realization, fastening the liability on non-applicants no. 1 & 2 (driver and owner) while exonerating

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Insurance Company/non-applicant no.3 on the ground of breach of policy conditions.

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On claim petition i.e. Claim Case No.16/2014 being filed by the claimants- wife, children and parents of deceased under Section 166 of the Motor Vehicles Act claiming compensation of Rs.31,70,000/- under various heads, the Tribunal considering the evidence led by the parties, by the impugned award granted a total compensation of Rs.5,92,400/- with interest @ 9% p.a from the date of application till its realization, fastening the liability on non-applicants no. 1 & 2 (driver and owner) while exonerating Insurance Company/non-applicant no.3 on the ground of breach of policy conditions.

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Learned counsel for the appellants (driver and owner of the offending vehicle) in all the appeals submits that at the time of accident, the deceased persons and injured- Dashasan @ Meghu Yadav, who were catching fish at canal situated at village Lodhena, were not travelling in the offending vehicle and as soon as the offending vehicle reached to the canal, the offending vehicle turned turtle while trying to save a person coming on motorcycle and in that event, the offending vehicle fell down over the deceased persons and injured- Dashasan @ Meghu Yadav, due to which, deceased persons namely- Shanker Yadav, Chhandani Bai and Kalinder have died whereas Dashasan @ Meghu Yadav sustained injuries. He further submits that at the

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time of accident, the offending vehicle was insured with the Insurance Company/non-applicant No.3, therefore, in case of any liability being fastened, the same could be indemnified by the Insurance Company/non-applicant No.3. However, he submits that if this Court ultimately comes to the conclusion that the Tribunal has rightly fastened the liability upon the driver and owner/non-applicants No. 1 & 2, then in that situation, considering the facts and circumstances of the case, order of pay and recover may be passed in these cases. He has placed reliance on the decision of Allahabad High Court in the matter of United India Insurance Co. Ltd. v. Har Kunwar and others¹

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On the other hand, learned counsel for the respondent/insurance company supports the impugned award and submits that at the time of accident, the offending vehicle was insured only for agricultural purpose but the driver of the offending vehicle was driving the vehicle in violation of the policy conditions. He further submits that at the time of accident, 20-22 persons were travelling in the offending vehicle after paying fare for whom no premium was paid for carrying passengers and that Insurance covering the trolley was also only covering the risk of third party and driver of the tractor, therefore, the Insurance Company, is not liable for any payment of compensation. He also submits that the deceased persons and injured would not fall within the definition of a third party, on this ground, the Insurance Company cannot

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1 2007 ACJ 2249

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be saddled with the responsibility of payment of compensation.

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Per contra, learned counsel for the claimants in all the appeals supported the impugned award.

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Heard learned counsel for the parties and perused the material available on record including the impugned award.

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Admittedly, the appeals are by the driver and owner of the offending vehicle and solitary challenge is to the award of the Tribunal to the extent of fastening the liability of the payment of compensation upon the Insurance Company.

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The admitted position as it stands is that the policy which has been issued by the non-applicant No.3/Insurance Company (Ex.NA 2-1) in respect of the offending vehicle was covering the risk of third party along with owner-driver. That is to say, the owner of the offending vehicle had not paid any premium for covering the risk of any person who would be travelling in the tractor apart from driver. In other words, it is a case where in fact there is no premium received by the Insurance Company covering the risk of any person other than the driver or a third party.

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The Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. v. Vedwati² in paragra 11 and 12 has held as follows:

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“11. The difference in the language of "goods vehicle" as appear in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions

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2 2007 (9) SCC 486

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makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "good vehicle" in the old Act. The position becomes further clear because the expression used is "good carriage" is solely for the carriage of goods. Carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen's Compensation Act, 1923 (in short 'WC Act"). There is no reference to any passenger in "goods carriage".

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12. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor. ”

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The same principle was further reiterated by the Hon'ble Supreme Court again in one of its decisions in the case of National Insurance Co. Ltd. v. Parvathneni & Anr³ wherein in paragraph 8 it has been held that:

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“8. We have some reservations about the correctness of the aforesaid decisions of this Court. If the insurance company has no liability to pay at all, then, in our opinion, it can not be compelled by order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. When a person has no liability to pay at all how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.

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Though the said decision has been further placed to be

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3 2009 (8) SCC 785

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considered by a Larger Bench.

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Coming to the decisions of this High Court on the said issue, we have a couple of decisions of the Division Bench, the first among being the case of Bajaj Allianz General Insurance Company Limited v. Smt. Chaiti Bai & Ors⁴ wherein the Division Bench in a case of breach of policy conditions exonerated the Insurance Company of its liability to pay and recover and hold that the responsibility of payment of compensation would be upon the owner and driver and it will be open for the claimants to recover the amount from the owner and driver.

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Further, in one of the recent decisions in the case of Baijnath &

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another v. Chandrika Prasad Sahu and another⁵ , a Division Bench of this High Court has held as under in paragraphs 22 & 23:-

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“22. Perusal of the registration certificate of the tractor (Exh. 4) reveals that only the driver was entitled to sit on the tractor and no other person was entitled to travel on the tractor. Similarly, perusal of the registration certificate of the trolley (Exh. N-5) also reveals that not even a single person was entitled to travel in the trolley. Therefore, no premium was paid by the owner of the tractor for carrying labourers in the tractor trolley. The labourers were travelling in the tractor trolley contrary to the contract of insurance. For this reason also, the Insurance Company is not liable to pay the compensation amount. We are fortified in our view by the judgment of the Apex Court in the matter of Oriental Insurance Co. Ltd. v. Brij Mohan and Ors. 2007 A.I.R. S.C.W. 3734.

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4 M.A.(C). No. 1453 of 2009, decided on 13^th September, 2011.

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5 2008 (1)C.G.L.J. 307 (DB)

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In view of the foregoing reasons and on account of the breach of contract of insurance, we are of the considered opinion that the respondent Insurance Company is not liable to pay compensation amount and we do not find any illegality or infirmity in the award to this extent. Therefore, the appeals filed by Awadhram Sahu namely M.A. Nos. 811/2003, 962/2003, 1012/2003 & 1013/2003 are liable to be dismissed.”

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Reverting to the facts of the present case in light of principles of law laid down by their Lordships in the above referred matters, it is quite vivid from the statement of injured- Dashasan @ Meghu Yadav (AW-1) that at the time of accident, 20-22 persons were sitting in the offending vehicle as the passengers who were carrying rice from village Saraitoli. In cross-examination, he (AW1) denied that the deceased persons were catching fish near the canal and the offending vehicle fell over them. This apart, AW-2 Biflu Ram and Sukuram (AW-1 in claim case No.03/2014) have also stated that at the time of accident, deceased persons were sitting in the offending vehicle carrying rice after paying fare. Furthermore, the deceased persons including injured- Dashasan @ Meghu Yadav were travelling in the offending vehicle as passengers which was insured for agricultural purposes as per Ex.NA 2-1 (Insurance Policy) and offending vehicle i.e. tractor is having sitting capacity of one person only i.e. driver and in addition to that registration certificates which were seized vide Ex.A-6 also show that even a single person was not entitled to travel in the offending vehicle i.e. tractor and trolley except driver and that the

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Insurance Company had not received any extra premium from owner covering the risk of passengers who would be sitting in the trolley of the tractor. Unless there is a premium paid by the owner, it cannot be said that there was a contract entered into between the insurer and the insured by accepting the extra premium covering the risk of the passengers who may travel in the trolley of the tractor. Moreover, merg intimation and FIR were lodged promptly and immediately after the incident by which, it cannot be said that any fabricated facts could be added. It is also important to note that driver of the offending vehicle has not been examined before the Tribunal on behalf of the non-applicants.

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In view of the foregoing reasons and on account of the breach of contract of insurance, I am of the considered opinion that the Insurance Company/non-applicant No.3 is not liable to pay compensation amount and I do not find any illegality or infirmity in the impugned award to this extent.

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Having gone through the judgment relied upon by learned counsel for the appellants and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgment being distinguishable on facts, is of no help to the appellants.

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As the claimants herein have not filed any appeal for enhancement against the award, the said findings recorded by the Tribunal have now attained finality.

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In the result, the appeals filed by the driver and owner/nonapplicant Nos. 1 & 2 being without any substance are liable to be dismissed and are hereby dismissed.

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Sd/- (Radhakishan Agrawal) Judge

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Akhilesh

Ramesh Uraon And Anr. v. Mu. Brajmuni Bai And Ors.

Case brief

What is this about?

What did the court decide?

Ramesh Uraon And Anr. v. Mu. Brajmuni Bai And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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