Dismissed

Ashwani Kumar Kashyap v. Rajendra Kumar Jagat

Chhattisgarh HC25 Jul 2024MAC/609/2019

Case brief

AI extract

What is this about?

This judgment dismissed an appeal filed by a tractor owner challenging a Motor Accident Claims Tribunal award. The court held that the tractor was engaged in non-agricultural work while pulling a wooden log, violating the Kisan Package Policy, and exonerated the insurer from liability.

What did the court decide?

Appeal by the owner-driver dismissed; impugned award of Rs. 4,11,077/- liability on owner upheld; insurance company exonerated.

Ashwani Kumar Kashyap Vs Rajendra Kumar Jagat — Motor Accident Claims | Chhattisgarh HC (2024)

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2024:CGHC:27491

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 609 of 2019

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Ashwani Kumar Kashyap S/o Kedar Kashyap Aged About 34 Years R/o Village Jarwe (Ch) Police Station And Tahsil Janjgir Champa, District Janjgir Champa Chhattisgarh.(Owner Of The Vehicle No. Cg 11, Da 1254 And Trolley No. Cg 11,da- 3507), District : Janjgir-Champa, Chhattisgarh

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... Appellant

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versus

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1 - Rajendra Kumar Jagat S/o Kushal Prasad Aged About 45 Years R/o Purani, Basti, Ward No.11, Janjgir, Police Station And Tahsil Janjgir, District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh

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2 - Kamleshwari, W/o Rajendra Kumar Jagat R/o Purani, Basti, Ward No.11, Janjgir, Police Station And Tahsil Janjgir, District Janjgir Champa Chhattisgarh.

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3 - Branch Manager The Orient Insurance Company Ltd. Branch Office, Station Road, Champa, District Janjgir Champa Chhattisgarh.

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... Respondents

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(Cause title taken from Case Information System)

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For Appellant : Mr. H.V. Sharma, Advocate For Respondent No.3 : Mr. Sudhir Agrawal, Advocate

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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Order on Board

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VEDPRAKASH DEWANGAN Digitally signed byVEDPRAKASH DEWANGAN Date: 2024.09.28 11:18:42 +0530

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26/07/2024

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Present appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the non-applicant No.1/owner-driver of the offending vehicle challenging his liability to pay compensation. The appeal has been filed by the appellant challenging the impugned award dated 07.02.2019, passed by learned 3rd Additional Motor Accident Claims Tribunal, Janjgir-Champa in Motor Accident Claim Case No. 48 of 2018, whereby the amount of Rs. 4,11,077/- has been awarded as compensation in favour of the claimants and liability to pay the compensation is imposed upon the owner- driver of the vehicle i.e. non-applicant No.1.

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The brief facts of the case are that on 26.01.2016, at about 11:00 AM, The deceased- Shivnarayan was returning by his motorcycle bearing number CG-11-A-9605 along with his brother from Janjgir to his village. On the way, near Bhathapara Mohalla, the non-applicant No.1, who was the driver-owner of the Tractor, bearing number CG11-DA-1254 and Trolley No. CG-11-DA-3507 put his Tractor in one side of the road and tied the wooden log on the other side of the road by the rope, which laid across the road and had tried to pull the said wooden log up to the Trolley by using the mechanical force of the Tractor. As and when the deceased came near the rope, which was laid across the road, the non-applicant No.1 drove his Tractor for pulling up the wooden log into the Trolley, by which the rope stuck on the neck of the deceased, and they fell down from their motorcycle. By the said accident, the deceased had received various injuries on

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his body. He was immediately taken to District Hospital, Janjgir and thereafter shifted to Apollo Hospital, Bilaspur. He was continuously taken treatment from 26.01.2016 to 27.10.2017 and ultimately, he died on 28.10.2017. The FIR for the offence under Sections 337 and 338 of IPC was registered against the non-applicant No.1 and after investigation, charge sheet was filed against him before the Learned Chief Judicial Magistrate, Janjgir. After death of the deceased, the claimants who are the parents of the deceased have filed claim case for compensation of Rs. 19,65,077/- on various heads. The claimants have pleaded in their claim application that, by the negligent act of the owner-cum-driver of the Tractor, the accident occurred and after a prolonged treatment, the deceased died, and therefore, they claimed the compensation. The deceased was aged about 22 years at the time of accident, and he was earning Rs. 6,000/- per month by work as a labourer and they were dependent upon the income of the deceased, therefore, they have claimed the amount of compensation on various heads.

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The non-applicant No.1 has contested the claim of the claimants and filed their written statement with the pleading that on the date of accident, the Tractor and Trolley of non-applicant No.1 was engaged in the agricultural work, as he had gone to take soil near canal for agricultural purposes, and he parked his Tractor and Trolley on the side of the road and when the labourers of the Tractor were filling the soil in the Trolley, the deceased and another person drove their vehicle in negligent manner and they themselves dashed with the Tractor. The deceased and his companion were in intoxication of

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liquor. Since the Tractor was in stationed condition and parked on the side of road, he has not lodged any report. It is also pleaded that the Tractor was duly insured with the non-applicant No.2/insurance company. Since, the accident was the negligent act of driver of the motorcycle itself, therefore, claimants are not entitled for any compensation.

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The non-applicant No.2/insurance company has also contested the claim of the claimants and filed the written statement with the pleading that the said Tractor was insured for agricultural purpose, and it was being used at the time of accident for other than agriculture purpose and was carrying the wooden log through the rope and by the said rope, the accident occurs and since the Tractor was being used in non-agricultural purpose, the Trolley was not insured, the vehicle was being used in carrying the wooden log. Therefore, the insurance company is not liable to pay any compensation. It is also pleaded that there is no postmortem report in the case with respect to the death of the deceased. The deceased has died for some other reason and not by the accident. During his lifetime, he had filed the claim case for compensation of his injuries and after his death, present claim case has been filed, which is beyond the limitation period and therefore, the claim application of the claimants is liable to be dismissed.

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Based on the pleadings of the respective parties, the Learned Claims Tribunal has framed 04 issues and after recording evidence of the parties and hearing them, partly allowed the claim of the claimants

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and has awarded Rs. 4,11,077/- as compensation in their favour. The insurance company has been exonerated and liability to pay compensation has been imposed upon the non-applicant No.1 i.e. owner of the vehicle. Hence this appeal.

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Learned counsel for the appellant would submit that the vehicle was being used for agricultural purpose as it was engaged in carrying soil, which is the agricultural related work. The Tractor was having the Kisan Package Policy and thereby, the present accident has duly covered the loss of any third party caused by the said Tractor during the engagement of agricultural work. Therefore, the liability to pay the compensation is upon the insurance company, but the Learned Claims Tribunal has held that at the time of accident, the Tractor was engaged in transportation of the wooden log, which is the nonagricultural work and comes under the violation of policy condition. The Learned Claims Tribunal should have considered that even if it is found that the Tractor was engaged in transportation of wooden log, in absence of any positive evidence that it was being used for any commercial purpose, cannot be said that it is other than the agricultural work. There are so many forms of agricultural work, including cutting of trees, transportation of the wooden logs, as also transportation of the soil. There is no evidence on record that the said Tractor was being used for transportation of wooden log in view of absence of charging money from the owner of that wooden log. Therefore, the entire liability to pay the compensation is upon the insurance company. Yet the insurance company has been exonerated and therefore he prayed for allowing the appeal.

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On the other hand, the learned counsel for the respondent No.3/insurance company would submits that on the date of accident, only the Tractor was insured and the Trolley was not insured. From the document of criminal case and from the written report lodged by the deceased himself Exhibit A-3, it is quite vivid that the Tractor was being used for transportation of wooden log and the non-applicant No.1 tried to pull the wooden log into Trolley through the rope laying across the road by pulling it through the Tractor. At that very moment, the deceased crossing the rope and the non-applicant No.1 runs the Tractor, by which, the rope stuck on the neck of the deceased and the accident occurred.

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The non-applicant No.1 has not challenged the record of the criminal case that a wrong story has been developed by the injured that the Tractor was being engaged in transportation of the wooden log, whereas it was actually engaged in carrying the soil for his agricultural field. In the claim case, the non-applicant No.1 has taken entirely different defence that the vehicle was being used for carrying soil near the canal and it was parked on the down of the road and then the deceased himself dashed with the Tractor by driving his motorcycle in rash and negligent manner. He would further submit that the non-applicant No.1 was not there at the time of accident. The non-applicant No.1 has not proved the fact that on the date of accident, the Tractor was engaged in agricultural work by leading cogent evidence and the Learned Claims Tribunal has rightly exonerated the insurance company by holding that, the Tractor was being engaged in other than agricultural purpose and there is

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violation of policy condition. He prayed for dismissal of the appeal filed by the non-applicant No.1.

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I have heard learned counsel for the parties and perused the record.

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In the present case, the manner of accident is in dispute, as to whether the accident was occurred due to stuck of the rope on the neck of the deceased, when the Tractor was pulling the wooden log to put the same in the Trolley from the other side of the road or when the Tractor along with Trolley was parked on the side of the road and the labourers were filling the soil on the Trolley and then the deceased himself by negligent driving of his motorcycle, dashed with the Tractor. The document of criminal case was relevant. On 16.02.2016, the deceased himself has lodged a written report (Exhibit A-3) to the police alleging in it that, when he was returning from Janjgir to his village along with his brother by the motorcycle, near Bhathapara Mohalla, a rope was lying across the road, which was tied by the Tractor at one side of the road and in the other side of the road, the rope was tied with the wooden log, and the wooden log was trying to pull up to the Trolley with the help of mechanical force of the Tractor from the other side of the road. At that time, when they reached near the rope, the Tractor starts pulling the wooden log and then the rope was stuck on the neck of the deceased by which they fell down and received injuries on various parts of the body.

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The police has registered the FIR on 17.02.2016. The Tractor and Trolley were seized and after due investigation, charge sheet was filed against the non-applicant No.1, and in the charge sheet, pulling

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of the wooden log through the mechanical force of the Tractor to put it in the Trolley is, in fact, narrated in it. The contents of the FIR as well as the final report has not been challenged by the non-applicant No.1 in any higher forum or before any authorities. In the present claim case, the non-applicant No.1 has taken the defence that his Tractor was standing on the side of the road near canal, where the labourers were filling the soil on the Trolley and the deceased himself came with the negligent manner and dashed with the Tractor.

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There is no report from the non-applicant No.1 that the deceased dashed with the Tractor and has got injured. Even when his Tractor and Trolley was seized by the police, he has not made any complaint that a false report has been lodged against him and he first time has disclosed this fact in his written statement filed in the case that has been filed on 30.08.2018. To substantiate his defence, he has examined his witness NAW-1 Pitambar Kashyap, who was his labourer. No 161 Cr.P.C. statement of Pitambar Kashyap is recorded in the criminal case registered against the non-applicant No.1 and he was witness of seizure of Tractor. Had he been the actual witness of the incident, his statement must have been recorded by police in the criminal case registered against the non-applicant No.1. He stated in his cross-examination that the police has recorded his statement, but he is only the witness of seizure of the Tractor and he has not raised any objection that the deceased himself has dashed with the Tractor. The evidence of this witness is not sufficient to hold that the vehicle was being engaged in transportation of soil, which is for agricultural purpose, but from the documentary evidence, it appears that it was

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being used for transportation of the wooden log. The non-applicant No.1, who is examined as NAW-2 has denied the transportation of wooden log at the time of accident, but he has not stated that he challenged the contents of the charge sheet in any higher forum and thus, from the preponderance of probability, it is found proved that at the time of accident, the Tractor was being used in carrying wooden log, which can be said to be in non-agricultural purpose. As there is no evidence on record that the said wooden log was carrying from the field and is a part of the agricultural work, as there is complete denial from the non-applicant No.1 that the Tractor was being used for carrying wooden log.

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The Learned Trial Court has also considered that the vehicle was being used for non-agricultural work, which is the violation of policy condition. Another defence has been taken by the insurance company that the Trolley was not insured and that accident was occurred due to combined involvement of the Tractor and Trolley and since the Trolley was not insured, the insurance company is not liable to pay any compensation. This Court is not able to accept the argument advanced by learned counsel for the respondent No.3 in view of the fact that it is the Tractor, who was run suddenly for pulling the wooden log and co-incidentally, at the same time, the deceased was also reached there, where the rope was lying across the road and by running the Tractor, the rope was stuck on the neck of the deceased, and thus it can be said that the accident is occurred by the Tractor. Even if the trolley was not insured, it would not give any benefit to the insurance company, as it has already been held that

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Tractor was being used for non-agricultural work, which is in violation of the policy condition.

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From the foregoing discussions, this Court does not found any good ground to interfere with the impugned award passed by the Learned Claims Tribunal exonerating the insurance company from payment of compensation and therefore the appeal filed by the appellant is liable to be and is hereby dismissed.

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Sd/(Ravindra Kumar Agrawal) Judge

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ved

Ashwani Kumar Kashyap v. Rajendra Kumar Jagat

Case brief

What is this about?

What did the court decide?

Ashwani Kumar Kashyap v. Rajendra Kumar Jagat

Case brief

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What did the court decide?

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